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UNIVERSAL  CONGRESS  OF 
LAWYERS  AND  JURISTS 


OFFICIAL    REPORT 


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HELD  AT  ST.  LOUIS,  MISSOURI,  U.  S.  A. 

September  28,  29,  and  30,   1904 


UNDER  THE   AUSPICES  OF 

THE  UNIVERSAL  EXPOSITION 

"^  AND 

THE  AMERICAN  BAR  ASSOCIATION 


EDITED  BY  THE  SECRETARY  OF  THE  CONGRESS 


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PREFACE 

The  Universal  Congress  of  Lawyers  and  Jurists  was 
held  in  St.  Louis,  September  28,  29  and  30,  1904,  under 
the  auspices  of  the  Universal  Exposition  and  the  Ameri- 
can Bar  Association.  The  development  of  the  plan  and 
scope  of  the  Congress,  its  constituent  elements  and  the 
details  of  its  organization  were  in  the  hands  of  a  com- 

%  mittee,  composed  of  representatives  from  the  larger  com- 

g  mittees  that  were  appointed  by  the  Universal  Exposition, 

•^  the  American  Bar  Association  and  the  Bar  Association 
of  St.  Louis.  The  composition  of  these  committees  and 
a  report  of  their  labors  will  be  found  herein  under  the 

,-   heading  of  "History  of  the  Organization  of  the  Congress." 

o    (See  Appendix  A.) 

uj  The  members  of  the  Congress,  nearly  a  thousand  in 
number,  were  named  by  the  various  Governments,  to 
whom  invitations  had  been  extended  throuejh  the  Ameri- 
can  State  Department,  by  bar  associations,  orders  of  advo- 
cates and  kindred  organizations  in  different  countries  of 
y^e  world,  by  the  law  faculties  of  universities  and  schools 
^  of  law,  and  from  the  profession  at  large  by  the  commit- 

^"^  tee  itself.  The  American  members,  naturally  greatest  in 
number,  included  one  hundred  and  twenty-five  Delegates 
named  by  President  Roosevelt  in  behalf  of  the  United 
States  Government,  those  judges  of  the  Federal  courts  and 
State  appellate  courts  of  last  resort  who  accepted  the  invi- 
tations sent  to  them  to  become  members  of  the  Congress; 
one  hundred  Delegates  appointed  by  the  American  Bar 
Association,  Delegates  from  each  State  or  Territorial 
bar  association,  or  appointed  by  the  judges  of  the  highest 


^' 


385141 


vi  PREFACE 


court  in  any  State  or  Territory  not  having  such  an  asso- 
ciation ;  Delegates  from  the  law  faculty  of  each  State  uni- 
versity or  school  of  law  belonging  to  the  Association  of 
American  Law  Schools,  and  lastly,  certain  Delegates-at- 
large,  specially  appointed,  the  number  of  which  was 
about  one  hundred. 

The  expressed  objects  of  the  Congress  were  the  con- 
sideration of  the  history  and  efficacy  of  the  various  sys- 
tems of  jurisprudence  and  the  discussion  of  those  ques- 
tions of  international,  municipal  and  maritime  law  which 
concern  the  welfare  of  all  civilized  nations;  the  hope  of 
contributing  to  greater  harmony  in  the  principles  and 
the  forms  of  procedure  upon  which  the  law  of  civilized 
nations  should  be  based;  the  bringing  of  lawyers  and 
jurists  from  all  parts  of  the  world  into  contact  for  the  pur- 
pose of  exchanging  views  on  the  principles  and  methods 
of  the  correct  administration  of  justice,  and  the  estab- 
lishing of  closer  relations  and  associations  between  mem- 
bers of  the  profession  upon  which  the  administration  of 
justice  depends. 

Nearly  five  hundred  Delegates,  slightly  over  half  the 
number  of  those  accredited,  and  representing  nineteen 
different  countries,  were  present  at  the  Congress,  an  admir- 
able showing  when  it  is  borne  in  mind  that  many  of  the 
appointments  were  of  an  honorary  character,  given  largely 
as  a  mark  of  recognition  of  high  standing  in  the  profes- 
sion, and  not  always  with  the  expectation  that  the  appoin- 
tees could  undertake  the  long  journey  to  St.  Louis.  From 
many  of  those  who  could  not  come  were  received  letters 
warmly  indorsing  the  plan  of  the  Congress,  bespeaking  it 
every  success,  and  expressing  deep  regret  that  they  could 
not  be  present.  It  is  a  source  of  gratification  to  all  the 
participants  in  the  Congress  that  it  did  bring  together  so 


PREFACE  vii 


large  a  number  of  members  of  the  profession,  both  active 
and  emeritus,  not  only  because  of  the  resulting  valuable 
exchange  of  ideas  on  methods  of  administering  justice 
and  strengthening  of  agencies  for  securing,  ultimately,  an 
effective  tribunal  for  the  peaceful  solution  of  international 
difficulties,  but  also  because  of  the  rare  opportunity 
afforded  for  lawyers  of  different  countries  to  become 
acquainted  v^ith  one  another. 

A  satisfactory  feature  of  the  Congress,  composed  as  it 
was  of  a  preponderance  of  English-speaking  Delegates, 
was  that  nearly  all  the  speakers  were  able  to  discourse  in 
the  English  language.  The  editor  of  this  report  has  en- 
deavored to  present  the  papers  and  speeches  just  as  de- 
livered, making  few  if  any  changes  in  construction,  and 
only  a  few  changes  of  words.  It  was  thought  that  the 
foreign  use  of  the  English  medium  added  a  piquancy  to 
the  discussion  which  more  than  compensated  for  any  inac- 
curacy of  English  idiom. 

The  Congress,  following  the  recommendation  of  its 
Committee  of  Nations,  to  which  under  the  rules  were 
referred  all  proposed  resolutions,  has  expressed  its  views 
on  several  subjects  of  international  importance  and  of 
professional  interest.  On  some  subjects  which,  because 
they  were  in  nature  political  or  economic,  were  not 
deemed  germane  to  the  purposes  of  the  Congress,  it  de- 
clined to  give  an  opinion.  Other  subjects  which,  on  ac- 
count of  the  limited  time  at  the  disposal  of  the  Congress, 
could  not  receive  adequate  consideration,  it  has  referred 
to  the  American  Bar  Association  to  be  presented  to  some 
future  congress. 

The  Editor. 


TABLE  OF  CONTENTS 

PAGE 

ORGANIZATION   OF  THE   CONGRESS viii 

OFFICERS  OF  THE  CONGRESS xv 

RULES  OF  ORGANIZATION  AND  PROCEDURE xvii 

PROCEEDINGS  OF  THE  CONGRESS,  SEPTEMBER  28 
Remarks  of  Mr.  F.  W.  Lehmann,  Opening  the  Congress       i 
Address  by  Hon.  D.  R.  Francis,  President  of  the  Expo- 
sition         2 

Inaugural  Remarks  of  Hon.  David  J.  Brewer.  Presi- 
dent OF  the  Congress 4 

Election  of  Vice-Presidents 8 

Paper  by  Hon.  John  W.  Foster    9 

Subject:  "The  Promotion  of  the  Settlement  of  Interna- 
tional Controversies  by  Resort  to  The  Hague  Tri- 
bunal or  Reference  to  Special  Commissions." 
Discussion  of  the  Paper  by 

Seflor  Emilio  Velasco  of  Mexico 45 

Mr.  Jackson  H.  Ralston  of  Washington,  D.  C 52 

Appointment  of  Committee  of  Nations 60 

Motions 61 

MORNING  SESSION,  SEPTEMBER  29. 

Paper  by  Herr  Gustaf  E.  Fahlcrantz  of  Sweden 65 

Subject:    "The  Preferable  Method  of  Regulating  the 
Trial  of  Civil  Actions  with  Respect  to  Pleading  and 
Evidence." 
Discussion  of  the  Paper  by 

Dr.  Adolf  Hartmann  of  Germany 91 

Professor  Alfred  Nerincx  of  Belgium 95 

Reply  of  Herr  Fahlcrantz 100 

Discussion  Continued  by 

Judge  John  F.  Dillon  of  New  York    103 

Mr.  C.  C.  Cole  of  Iowa    108 

ix 


X  CONTENTS 

I'ACJE 

MORNING  SESSION,  SEPTEMBER  29  (continued) 

Judfj;e  Somerville  P.  Tuck  of  Egypt 109 

Mr.  Theodore  Sutro  of  New  York    1 10 

Dr.  Adolf  Hartmann  of  Germany 110 

Mr.  E.  Fal)re  Surveyer  of  Canada   111 

AFTERNOON  SESSION,  SEPTEMBER  29. 

New  ^Member  of  the  Committee  of  Nations 114 

Discussion  of  the  Morning  Continued  by 

Chow  Tszchi  of  China 115 

Paper  by  Professor  D.  J.  Jitta  of  the  Netherlands.  .   117 
Paper  by  Professor  F.  Meili  of  Switzerland 135 

Subject  of  both  papers:   "A  Review  of  the  Four  Hague 
Conferences    on    Private    International    Law,    the 
Objects  of  the  Conferences,  and  Probable  Results." 
Discussion  of  the  Papers  by 

Judge  Simeon  E.  Baldwin  of  Connecticut  172 

President  Brewer 177 

Report  of  the  Committee  of  Nations   178 

Passage   of   Resolution   Favoring   a  Second   Hague 

Conference 179 

Proposed  Resolution   182 

MORNING  SESSION,  SEPTEMBER  .:,o. 

Election  of  a  Vice-President  from  Brazil 185 

Paper  by  Sir  William  R.  Kennedy  of  England 185 

Subject:    "To  What  Extent  Should  Judicial  Action  by 
Courts  of  a  Foreign  Nation  be  Recognized:" 
Discussion  of  the  Paper  by 

Sig.  Angelo  Pavia  of  Italy    207 

Hon.  Wallace  Nesbitt  of  Canada 213 

Mr.  Edward  Q.  Keas])ey  of  New  Jersey  227 

Judge  Joseph  A.  Breaux  of  Louisiana  229 

Judge  Robert  M.  Douglas  of  North  Carolina 230 

Resolution  Offered  by  Senor  de  Azpiroz  23 1 

Motions 23  2 

Report  of  the  Committee  of  Nations 233 


CONTENTS  xi 

PAGE 

MORNING  SESSION,  SEPTEMBER  30  (continued) 

Passage  of  Resolution    Favoring   Uniform    Patent 

Laws 233 

Passage  of  Resolution  Favoring  International  Ex- 
change OF  Law  Publications 234 

The  Question  of  Forming  an  International  Bar  Asso- 
ciation, Discussion  by 

The  Chairman  of  the  Committee  of  Nations 234 

Sir  William  R.  Kennedy   236 

AFTERNOON  SESSION,  SEPTEMBER  30. 

Paper  by  Hon.  G.  A.  Finkelnburg  of  Missouri 237 

Subject:  "The  Protection  which  Should  be  Accorded  to 
Private  Property  on  the  High  Seas  in  Time  of  War." 
Discussion  of  the  Paper  by 

Chevalier  A.  von  Stibral  of  Austria   245 

Mr.  Everett  P.  Wheeler  of  New  York 247 

Mr.  Moorfield  Storey  of  Massachusetts 251 

Mr.  George  S.  Robertson  of  England    253 

The  Proposed  International  Bar  Association,  Fur- 
ther Discussed  by 

Mr.  James  Hagerman  of  Missouri   256 

Mr.  Walter  S.  Logan  of  New  York 258 

Mr.  Everett  P.  Wheeler  of  New  York   261 

Mr.  F.  M.  Huffaker  of  Nevada 262 

Mr.  J.  O.  Crossby  of  Iowa    262 

Mr.  John  Dryden  of  Nebraska  263 

Report  of  the  Committee  of  Nations   264 

Resolutions   264 

Closing  Remarks  of  the  President 268 

List  of  Delegates  Accredited  to  the  Congress 270 

General  Numerical  Summary  3x2 


xii  CONTENTS 


APPENDIX 

PACE 

(A)  HISTORY    OF    THE    ORGANIZATION     OF    THE 

CONGRESS 315 

(B)  THE   HAGUE    CONFERENCES   ON    PRIVATE  IN- 

TERNATIONAL LAW. 

Text  of  the  Various  Conventions  and  Convention 
Projects.      (Appendix  to  Professor  Meili's  Paper.)  ..   332 

Bibliography  of  the  Conferences  on  Private  In- 
ternational Law.  (Appendix  to  J'^ids;e  Baldwin's 
Remarks.) 375 

(C)  FOREIGN  DECREES  OF  DIVORCE 379 

English  Translation  of  Sig.  Pavia's  Remarks. 

(D)  EXTRADITION  TREATIES 384 

Observations  Submitted  by  Ambassador  de  Aspiroz 
IN  Support  of  his  Resolution  on  the  Subject. 

(E)  JOINT  STOCK  COMPANIES 391 

A  Plea  for  an  International  Form  of  Articles  of 
Association.  A  Paper  by  M.  Loicq  de  Lobel  of 
France. 

(F)  NOTES    ON  CHINESE    LEGISLATIVE    PROCED- 

URE    395 

A  Paper  by  Mr.  C.  M.  Lacey  Sites  of  Shanghai. 


ORGANIZATION    OF    THE    CONGRESS 

President  of  the  Universal  Exposition,  1904, 
DAVID  R.  FRANCIS. 

President  of  the  American  Bar  Association, 
JAMES  HAGERMAN. 

Chairman  Exposition  Committee  on  Congresses, 
FREDERICK  W.  LEHMANN. 

Director  of  Congresses, 
HOWARD  J.  ROGERS. 

Committee  on  Plan  and  Scope, 
FREDERICK  W.  LEHMANN,  Chairman. 
AMOS  M.  THAYER,  JAMES  HAGERMAN, 

JACOB  KLEIN,  EDWARD  S.  ROBERT. 

CHARLES  CLAFLIN  ALLEN. 

Secretary  oj  the  Organization  Committees, 
V.  MOTT  PORTER. 


xin 


OFFICERS    OF    THE    CONGRESS 

PRESIDENT 

HON.  DAVID  J.  BREWER 

U.  S.  Supreme  Court,  Washington. 

VICE-PRESIDENTS 

Argentine  Republic. 

DR.  JOSE  V.  FERNANDEZ 

Argentine  Consulate  General,  New  York. 

Austria. 

ADALBERT  RITTER  VON  STIBRAL 

I  Postgasse  8,  Vienna. 

Belgiwn. 

PROF.  ALFRED  NERINCX 

Louvain  University,  Brussels. 

Brazil. 
DR.  L.  GONgALVES 

Manaos-Amazonas . 

British  Empire. 

HON.  SIR  WILLIAM  R.  KENNEDY 

Royal  Courts  of  Justice,  London. 

China. 

CHOW  TSZCHI 

Chinese  Legation,  Washington. 

France. 

PROF.  FERDINAND  LARNAUDE 

Faculty  of  Law,  Paris. 

Gerrnany. 

DR.  ADOLF   HARTMANN 

Konigliches  Land-Gericht,  Berlin. 

XV 


xvi  OFFICERS    OF   THE    CONGRESS 

VICE-PRESIDENTS  (continued) 

Italy. 

SIG.  AW.  ANGELO  PAVIA 

National  Parliament,  Rome. 

Mexico. 
His  Excellency  SENOR  DON  .MANUEL  DE  AZPIROZ 

Mexican  Embassy,  Washington. 

Netherlands. 

DR.  D.  JOSEPHUS  JITTA 

University  of  Amsterdam. 

Sweden. 
HERR  GUSTAF  E.  FAHLCRANTZ 

65  Odengatan,  Stockholm. 

Switzerland. 

DR.  F.  MEILI 

University  of  Zurich. 

United  States. 
HON.  SIMEON  E.  BALDWIN 

Supreme  Court  of  Connecticut   New  Haven. 
SECRETARY 

V.  MOTT    PORTER 

220  N.  Fourth  Street,  St.  Louis. 


The  list  of  Delegates  to  the  Congress  and  of  the  sources  of  their 
appointment  will  be  found  at  the  end  of  this  report. 


RULES    OF    ORGANIZATION    AND 
PROCEDURE 

I. — Membership 

The  Louisiana  Purchase  Exposition  Committee  of  the  American 
Bar  Association  will  prepare  and  furnish  to  the  President  of  the 
Congress  an  official  roll  of  all  accredited  to  the  Congress. 

II. — Officers 

In  order  to  facilitate  the  prompt  organization  of  the  Congress, 
the  Delegates  appointed  in  behalf  of  the  United  States  have  appointed 
as  its  President  the  Honorable  David  J.  Brewer,  Associate  Justice 
of  the  Supreme  Court  of  the  United  States,  and  as  its  Secretary,  Mr. 
V.  MoTT  Porter,  of  the  St.  Louis  bar. 

At  the  opening  of  the  first  session,  the  President  will  call  for  the 
nomination  of  one  Vice-President  and  one  member  from  each  of  the 
Nations  represented  to  form  a  Committee  of  Nations. 

III. — Business 

All  matters  calling  for  a  formal  \-ote  of  the  Congress  will  be  pro- 
posed by  the  Committee  of  Nations,  either  on  their  own  initiative 
or  by  way  of  report  on  propositions  or  motions  referred  to  them. 
All  matters  proposed  from  the  floor  shall  be  referred  to  the  Com- 
mittee without  debate.  The  Committee  will  choose  its  chairman, 
who  will  make  all  propositions  in  its  behalf.  It  may  appoint  sul)- 
committees  consisting  of  any  members  of  the  Congress  to  aid  it  in 
the  discharge  of  its  functions. 

IV. — Papers  and  Discussions 

At  each  session  of  the  Congress  an  address  or  paper  will  be  pre- 
sented, and  followed  by  a  discussion  of  its  subject. 

Not  over  an  hour  will  be  occupied  in  delivering  such  address  or 
reading  such  paper,  but  it  will  be  printed  in  full  sul:)sequently  in  the 
Proceedings  of  the  Congress. 

xvii 


xviii         ORGANIZATION   AND    PROCEDURE 

The  author  of  each  paper  will  furnish  to  the  President  of  the 
American  Bar  Association,  at  St.  Louis,  Mo.,  as  early  as  he  may 
find  it  convenient  before  the  opening  of  the  Congress  a  brief  state- 
ment of  the  positions  taken  and  points  made,  for  the  information  of 
those  who  may  be  appointed  to  take  part  in  its  discussion. 

No  one  will  occupy  over  fifteen  minutes  in  discussion,  but  any- 
thing omitted  for  lack  of  time  will  be  printed  in  full  subsequently  in 
the  Proceedings  of  the  Congress. 

Papers  and  discussions  may  be  presented  in  any  language,  but 
translations  into  EngHsh  of  all  not  written  in  that  language  will  be 
made  before  the  opening  of  the  Congress  for  distribution  at  the  time 
of  the  presentation  of  such  paper  or  discussion. 

V. — Votes 

At  the  request  of  the  representatives  of  any  Nation,  the  vote  of 
the  Congress  on  any  question  will  be  taken  by  Nations,  each  Nation 
casting  one  vote. 

No  vote  can  have  the  effect  of  l)inding  or  prejudicing  the  action 
or  position  of  any  Nation  in  reference  to  any  subject.  While  votes 
may  be  taken  by  Nations,  they  will  express  simply  the  private  opin- 
ions of  individuals,  who  have  no  authority  to  speak  officially  in  such 
matters  for  their  respective  Governments. 

VI. — Subjects  to  be  Considered 

The  following  subjects,  among  others,  will  be  considered  by  the 
Congress,  and  papers  will  be  presented  as  a  foundation  for  the  dis- 
cussion of  some  or  all  of  them. 

First:  "The  promotion  of  the  settlement  of  international  con- 
troversies by  resort  to  The  Hague  Tribunal,  or  reference  to  special 
commissions." 

Second:  "The  preferal)le  method  of  regulating  the  trial  of  civil 
actions  with  respect  to  pleading  and  evidence." 

Third:  "A  review  of  the  Four  Hague  Conferences  on  private 
international  law,  the  object  of  the  conferences  and  probable 
results." 

Fourth:  "To  what  extent  should  judicial  action  by  courts  of 
a  foreign  nation  be  recognized?"     (Considered  with  special  refer- 


ORGANIZATION   AND    PROCEDURE  xix 

ence  to  the  status  of  indi\  iduals  as  affected  by  divorce  or  other  decrees, 
and  the  right  to  represent  the  person  or  property  of  another.) 

Fifth:  "The  protection  which  should  l^e  accorded  to  private 
property  on  the  high  seas  in  time  of  war." 

VII. — Right  to  the  Floor 

Anv  member  of  the  Congress  desiring  to  propose  any  matter  for 
consideration  may  do  so  by  presenting  a  written  motion  over  his 
signature.  This  will  be  presented  without  explanation  and  referred 
without  debate  to  the  Committee  of  Nations. 

The  President  of  the  Congress,  whenever  there  is  occasion  and 
opportunity  for  general  and  extemporaneous  discussion  upon  any  sub- 
ject, will  announce  that  there  is  such  opportunity;  and  any  member 
then  desiring  to  speak  will  send  his  card,  stating  that  fact,  to  the 
President.  No  one  will  be  recognized  as  entitled  to  the  floor  who 
has  not  thus  previously  communicated  his  desire  to  the  President. 
No  one  thus  speaking  will  occupy  over  ten  minutes. 

VIII. — Publications 

A  copy  of  the  official  record  of  the  proceedings,  in  a  printed 
volume,  will  be  furnished  as  soon  as  practicable,  after  the  adjourn- 
ment of  the  Congress,  by  the  representatives  of  the  United  States 
without  charge,  to  each  member,  and  to  the  Government  of  each 
Nation  represented. 


PROCEEDINGS 

OF  THE 


Universal  Congress  of  Lawyers 

AND  Jurists 

HELD   AT 

FESTIVAL  HALL,  UNIVERSAL  EXPOSITION 
ST.  LOUIS,  MISSOURI,  U.  S.  A. 


FIRST  DAY — Wednesday,  September  28,  1904 

The  Universal  Congress  of  Lawyers  and  Jurists  was 
called  to  order  at  2  p.  m.  by  Frederick  W.  Lehmann, 
Chairman  of  the  Universal  Exposition's  Committee  on 
International  Congresses  and  Chairman  of  the  Committee 
on  Plan  and  Scope  of  the  Universal  Congress  of  Lawyers 
and  Jurists. 

Mr.  Lehmann  spoke  as  follows: 

Gentlemen:  We  welcome  the  coming  as  we  speed  the  going 
guest.  The  American  Bar  Association  has  adjourned.  The 
Universal  Congress  of  Lawyers  and  Jurists  will  come  to  order. 

There  is  nothing  more  fitting  in  the  proceedings  of  this  Expo- 
sition than  this  great  gathering  of  lawyers,  for  in  the  event  which 
it  is  designed  to  commemorate  lawyers  were  the  chief  actors. 
By  the  deed  of  cession  which  constitutes  the  Louisiana  Purchase, 
France  gave  a  territory  four  times  as  large  as  that  which  it  retained 
and  the  United  States  got  a  domain  as  large  as  that  which  it 
aheady  possessed.  This  expansion  of  empire  was  not  accom- 
plished without  serious  misgivings  on  the  part  of  many  of  our 
people.  While  Mr.  Jefferson  beUeved  that  the  extension  of  the 
federative  principle  of  government  over  so  large  an  area  was  a 
distinct  accession  to  the  sum  of  human  happiness,  Fisher  Ames 
saw  in  the  result  a  country  too  big  for  union,  too  sordid  for 


2         CONGRESS    OF    LAWYERS   AND   JURISTS 

patriotism,  and  too  democratic  for  liberty.  A  hundred  years 
have  come  and  gone,  and  our  institutions  of  law  and  Hberty 
have  been  estabHshed  here  and  have  had  their  course  of  devel- 
opment untrammeled  by  old  traditions  and  unhindered  by  old 
abuses.  Whether  the  lawyer  statesmen  of  the  young  Republic 
wrought  for  good  or  for  evil,  whether  we  have  realized  the  fears 
of  the  faint-hearted  or  the  hopes  of  the  most  sanguine  of  the 
fathers,  attest  this  Exposition,  which  displays,  in  comparison 
with  the  rest  of  the  world,  the  arts,  the  science,  the  industry, 
and  the  culture  of  the  Louisiana  Territory. 

At  the  beginning  of  this  enterprise,  the  people  upon  whom 
the  burden  rested  turned,  without  dissent,  to  one  man  as  being 
capable  of  its  leadership  and  direction.  It  is  my  duty,  as  it  is 
my  pleasure,  to  introduce  to  you  the  President  of  the  Louisiana 
Purchase  Exposition  Company,  David  R.  Francis.     [Applause.] 

The  Honorable  David  R.  Francis,  President  of  the 
Exposition  Company,  welcomed  the  members  and  guests 
as  follows: 

Mr.  Chairman,  Ladies  and  Gentlemen :  The  Louisiana  Pur- 
chase Exposition  Company  greets  the  Universal  Congress  of 
Lawyers  and  Jurists.  When  this  Exposition  shall  have  ended, 
when  its  material  phases  shall  have  ceased  to  exist,  there  will 
remain  in  the  minds  and  hearts  of  the  people  who  visited  it  many 
pleasant  recollections,  and  the  memory  of  this  Exposition  will 
forever  abide  with  those  connected  with  its  organization  and 
its  operation.  Speaking  for  the  latter,  I  may  say  that  no  feature 
of  this  Exposition  is  a  source  of  greater  pride  to  them,  nor  the 
cause  of  more  sincere  gratification,  than  the  meeting  of  these 
congresses  that  are  called  together  for  the  purpose  of  j)romoting 
the  education  of  the  people  throughout  the  United  States,  for 
the  edification  of  all  who  attend  the  Exposition,  and  for  the 
fostering  of  brotherly  feeling  throughout  all  the  countries  that 
participate  in  this  World's  Fair.  It  is  very  proper,  and  a  good 
sequence,  that  an  interparliamentary  union  for  the  promotion 
of  arbitration,  participated  in,  as  it  was,  by  advocates  of  peace 


OPENING    OF   THE   CONGRESS 


from  the  legislative  bodies  of  all  civilized  countries,  should  be 
followed  by  an  international  congress  of  arts  and  science,  a 
brotherhood  of  those  who  would  make  the  first  effort  to  establish 
the  unification  of  all  knowledge  and  define  the  relations  between 
the  branches  of  science.  It  is  eminently  proper  that  two  such 
congresses  should  be  followed  by  a  universal  congress  of  those 
who  frame  the  laws  and  construe  them. 

The  development  of  international  law  has  been  followed  with 
the  greatest  interest  by  statesmen  and  jurists  throughout  the 
world.  The  great  fundamental  principles  that  underlie  the 
relations  of  one  country  to  another,  although  not  formulated 
into  statutes  or  enacted  into  laws,  are  observed  by  all  civilized 
countries,  and  every  convocation  of  the  leaders  of  thought  and 
of  the  advocates  of  law  in  civilized  countries  throughout  the 
globe  constitutes  another  decided  step  towards  a  definite  code 
of  international  law. 

The  Exposition  Management  cherishes  the  hope  that  this 
Universal  Congress  of  Lawyers  and  Jurists  may  be  a  very  material 
aid  towards  accomplishing  that  greatly  desired  object.  I  believe 
it  was  Lord  Bacon  who,  in  comprehensive  and  beautiful  lan- 
guage, said  that  laws,  when  just,  wise,  and  moderate,  give  to 
God,  to  Gesar,  and  to  their  subjects  the  things  that  appertain 
unto  each  of  them.     [Applause.] 

Any  assemblage  of  lawyers  in  the  United  States  deserv-es  and 
commands  the  respect  of  all  right-thinking  people.  When  an 
assemblage  such  as  this  is  brought  about,  participated  in,  as  it 
is,  by  distinguished  jurists  in  the  United  States  and  by  eminent 
advocates  and  jurists  from  other  civihzed  countries,  the  Expo- 
sition Management  is  proud  of  its  work.  [Applause.]  When 
some  express  the  opinion  that  from  a  commercial  standpoint 
these  congresses  are  not  wise,  we  certainly  are  surprised  and 
chagrined.  Such  expressions  indicate  a  complete  misunderstand- 
ing of  the  motive  that  prompted  the  congresses.  The  Manage- 
ment of  this  Exposition  never  for  a  moment  had  in  mind  any 
commercial  return  when  it  invited  the  International  Parliament, 
when  it  invited  the  International  Congress  of  Arts  and  Science, 


4         CONGRESS    OF   LAWYERS   AND   JURISTS 

nor  when  it  asked  the  lawyers  and  jurists  of  the  world  to  honor 
us  by  their  presence.  [Applause.]  There  will  be  no  regret 
because  of  the  failure  of  these  features  to  show  commensurate 
financial  returns.  We  feel  that  your  assembling  here  is  honor 
enough  for  us;  that  the  work  you  will  accomphsh  will  be  com- 
pensation sufficient  not  only  for  the  cost  of  your  assemblage  here, 
but  for  the  expense  of  this  entire  Exposition.  [Applause.]  I  am 
sure,  therefore,  that  I  but  give  utterance  to  the  sentiment  not 
only  of  the  Exposition  Management,  but  to  the  sentiment  of  the 
people  of  the  Louisiana  Territory,  to  the  sentiment  of  all  the 
states  and  territories  and  possessions  of  the  American  Union 
co-operating  in  this  Exposition,  when  I  say  that  we  extend  you  a 
hearty  welcome,  and  we  feel  honored  by  your  presence  here. 
[Applause.] 

This  memorable  assemblage  will  be  presided  over  by  a  dis- 
tinguished jurist  of  the  United  States  whose  fame  is  not  con- 
fined to  the  limits  of  our  own  country,  and  whom  the  Louisiana 
Territory  claims  as  one  of  her  sons.  [Applause.]  Coming 
within  the  limits  of  this  Purchase  in  his  early  manhood,  he  grew 
up  in  our  midst,  and  when  he  was  called  by  the  President  of 
the  United  States  to  the  highest  judicial  tribunal  in  this  country, 
and  to  one  which  has  no  superior  on  the  globe,  we  recognized 
the  good  judgment  of  the  appointing  power,  but  we  were  only 
reconciled  to  our  loss  by  remembering  that  it  was  the  nation's 
gain. 

I  have  the  honor  of  presenting  to  you  the  President  of 
the  Universal  Congress  of  Lawyers  and  Jurists,  Mr.  Justice 
Brewer.     [Prolonged  applause.] 

The  Honorable  David  J.  Brewer,  President  of  the 
Congress,  spoke  as  follov^s: 

Members  of  the  Universal  Congress  of  Lawyers  and  Jurists: 
Generally  speaking,  a  presiding  officer  should,  in  my  opinion, 
be  hke  a  Httle  child,  seen  and  not  heard,  and  yet  I  trust  you  will 
pardon  a  few  introductory  words.  First,  let  me  say  that  I  am 
deeply  sensible  of  the  honor  conferred  in  being  called  upon  to 


OPENING    OF   THE   CONGRESS 


preside  over  such  a  gathering  of  distinguished  lawyers  and 
jurists;  second,  you  have  doubtless  seen  the  programme  and 
rules  of  procedure,  and  you  will,  I  trust,  pardon  me  if  I  enforce 
those  rules,  especially  in  regard  to  the  matter  of  time. 

A  century  ago  a  territory,  imperial  in  extent,  now  also  im- 
perial in  population  and  resources,  was  transferred  from  one  na- 
tion to  another.  This  took  place  not  as  the  result  of  conquest, 
nor  at  the  end  of  a  war,  but  by  voluntary  contract  and  purchase. 
Not  a  gun  was  fired,  not  a  single  hfe  sacrificed.  The  lawyer 
and  not  the  soldier  made  the  transfer.  It  stands  out  unique, 
in  peaceful  beauty,  sohtary  amid  the  awful  grandeur  of  bloody 
centuries  of  war  and  conquest.  It  is  well  that  the  chief  city 
within  the  hmits  of  that  territory  should  now  celebrate  the 
centennial  of  the  transfer,  and  it  is  fitting  that  here  should 
gather  this  international  assembly  of  lawyers  and  jurists.  The 
glory  of  that  transfer  is  one  of  the  laurels  of  our  profession. 

On  these  exposition  grounds  is  seen  the  material  splendor 
of  our  civilization ;  the  world  in  miniature  is  before  us ;  its  work 
is  done  in  our  presence.  You  see  the  instruments  of  war,  the 
machinery  of  death,  the  iron-clad,  the  far-reaching  cannon, 
and  the  tented  field.  You  hear  the  blare  of  the  bugle  and  the 
tramp  of  the  soldier.  The  battle  rages  as  you  Hsten.  Turn 
your  eyes,  and  the  peaceful  achievements  of  science  and  industry 
arrest  your  attention;  the  life-savers  push  their  boats  into  the 
stormy  waters;  the  fire-fighters  mount  the  burning  buildings; 
the  doctor  and  surgeon  display  their  medicines  and  delicate 
instruments,  while  they  heal  the  sick  and  bind  the  broken  bone. 
The  school,  the  college,  and  the  university  are  all  doing  their 
work  of  education,  while  the  blind  learn  to  see,  the  deaf  to  hear, 
and  the  dumb  to  talk.  Mighty  machinery  brings  up  from  the 
depths  of  the  earth  its  treasures  of  ores  and  mineral,  digs  tun- 
nels, drives  the  long  commodious  train  and  the  palaces  of  the 
ocean,  manufactures  innumerable  things  which  go  to  make  the 
comforts  and  luxuries  of  our  homes  and  our  civilization.  Agri- 
culture displays  its  infinite  variety  of  products  for  the  sustenance 
of  life,  while  horticulture  brings  back  the  glories  of  Eden.     The 


6         CONGRESS    OF   LAWYERS    AND   JURISTS 

artist  charms  our  eyes  with  the  matchless  beauty  of  painting 
and  statue.  We  see  and  feel  the  gorgeous  glamour  of  our 
twentieth-century  civilization,  and  we  rejoice  and  glory  in  it. 

But  we  do  not  see  the  work  of  the  lawyer.  On  Monday 
morning,  when  the  American  Bar  Association  was  in  session 
in  this  hall,  a  lady  came  to  one  of  the  entrances  and  asked  the 
guide,  "What  is  in  there?"  The  reply  was,  "The  American 
Bar  Association  is  in  session."  "Is  there  anything  to  see?" 
"Not  a  thing,"  was  the  reply.  Evidently  the  guide  forgot  my 
friend  Mr.  Hagerman,  and  the  other  distinguished  gentlemen 
who  were  on  exhibition  on  this  platform.  The  incident,  though 
amusing,  suggests  a  thought  worth  considering.  The  work  of 
the  lawyer  is  not  visible.  We  see  all  the  mighty  things  that 
Westinghouse  and  Bell  and  other  discoverers  and  inventors 
have  placed  before  us,  and  which  are  so  useful  in  our  lives,  but 
we  do  not  see  the  thought  of  the  lawyer  which  fashioned  into 
shape  the  legislation  that  secured  to  them  compensation  for  their 
contributions  to  our  twentieth-century  civilization.  At  this 
Exposition  you  can  see  twenty  acres  of  Philippine  life,  but  you 
do  not  see  a  square  rod  of  the  Constitution.  And  yet  in  the 
presence  of  this  marvelous  appeal  of  material  things  I  affirm 
that  the  work  of  the  lawyer  and  jurist,  invisible  as  it  may  be  to 
the  physical  eye,  is  of  far  greater  value  to  humanity,  for  of  what 
avail  would  be  all  the  achievements  of  science  if  life,  liberty, 
and  property  were  not  made  sacred  by  the  just  administration 
of  law?  The  fabric  of  our  civilization  is  indeed  a  thing  of 
beauty,  but  it  is  made  strong  and  enduring  only  by  the  golden 
thread  of  equal,  exact,  and  universal  justice. 

The  work  of  the  hand  will  crumble  and  fade,  but  the  thought 
which  enters  into  the  world's  history  endures.  Time  has  swept 
with  destroying  hand  over  all  the  material  splendor  and  the 
mighty  cities  of  ancient  civilization.  As  we  uncover  the  ruins 
we  catch  a  faint  ghmpse  of  what  that  civilization  was,  but  we 
have  learned  more  of  its  character  from  the  code  of  Hammurabi, 
recently  unearthed  on  the  banks  of  the  Euphrates.  Gibbon 
wrote  with  pathetic  eloquence  of  the  decline  and  fall  of  Rome, 


OPENING    OF   THE    CONGRESS 


yet  the  Institutes  of  Justinian  are  still  the  law  of  many  nations. 
The  fame  of  Napoleon,  the  military  hero,  will  grow  dim  as  the 
ages  pass,  but  the  Code  Napoleon  will  bear  his  name  with 
increasing  honor  to  the  end  of  time.  All  the  material  splendor 
of  this  Exposition,  beautiful  as  it  is  to  the  eye,  will  soon  pass 
away,  but  the  work  done  in  the  various  congresses  here  gathered 
will  make  an  enduring  impression  upon  our  advancing  social  life. 
May  we  in  this  Congress  reahze  the  full  importance  of  that  we 
have  gathered  to  do.  We  meet  not  as  dreamers  or  theorists, 
but  as  practical  men  to  counsel  together  of  those  things  which 
will  bring  enduring  peace  and  greater  strength  of  social  order. 
We  wish  to  incarnate  justice  into  human  hfe.  While  not  in 
name  a  peace  congress,  it  will  tend  to  hasten  the  peace  of  the 
world.  While  not  a  legislative  body,  it  means  better  law. 
While  not  a  court,  it  means  a  higher  order  of  judicial  admin- 
istration. We  would  lift  up  the  profession  in  all  its  work  and 
relations  to  a  loftier  place  in  the  world's  hfe.  Let  us  ever  remem- 
ber that  the  material  splendor  here  visible  is  not  the  end  of 
life,  but  that  all  things,  from  the  lowest  to  the  highest,  all  organi- 
zations, from  the  smallest  to  the  government  itself,  are  but 
means  designed  to  enable  every  citizen  to  round  out  his  life  to 
the  full  horizon  of  its  capacity;  and  that  this  result  is  possible 
only  as  law  and  justice  become  synonymous  terms  and  of 
universal  dominion.  Let  us  not  be  turned  away  from  our  high 
purpose  by  any  ghtter  of  gold  or  temptations  of  luxurious  life, 
but  ever  remember  that  justice  is  one  thing  beneath  the  eternal 
blue  which  changes  not  from  age  to  age,  and  quoting  the  lan- 
guage of  England's  recent  poet, 

"Lord  God  of  Hosts,  be  with  us  yet, 
Lest  we  forget;  lest  we  forget."         [Applause.] 

The  next  thing  on  the  order  of  exercises  is  the  calling  of 
the  roll,  but  it  is  deemed  that  that  is  a  needless  proceeding  and 
it  will  be  omitted.  The  roster  of  Delegates  is  already  made 
up.  I  now  call  for  nominations  for  Vice-Presidents  from  the 
several  nations. 


8         CONGRESS    OF   LAWYERS   AND    JURISTS 

Mr.  Francis  Rawle  of  Pennsylvania,  a  Delegate  of 
the  United  States  Government: 

Mr.  President:  I  nominate,  for  honorary  Vice-Presidents, 
the  thirteen  gentlemen  representing  the  thirteen  nations  whose 
names  appear  on  this  list,  which,  with  your  permission,  I  will 
ask  the  Secretary  to  read. 

The  Secretary: 

The  nominations  are  as  follows: 

Argentine,  Dr.  Jose  V.  Fernandez. 

Austria,  Chevalier  Adalbert  von  Stibral. 

Belgium,  Professor  A.  Nerincx. 

British  Empire,  Hon.  Sir  William  R.  Kennedy. 

China,  Mr.  Chow  Tszchi. 

France,  Professor  A.  Larnaude. 

Germany,  Dr.  A.  Hartmann. 

Italy,  Signor  Angelo  Pavia. 

Mexico,  Senor  Don  Manuel  de  Azpiroz. 

Netherlands,  Dr.  D.  Josephus  Jitta. 

Sweden,  Vice- Judge  G.  E.  Fahlcrantz. 

Switzerland,  Dr.  F.  Meili. 

United  States,  Judge  Simeon  E.  Baldwin,  of  Connecticut. 

The  nominations  being  duly  seconded  and  there  being 
no  further  nominations  the  President  put  the  motion  that 
the  above-named  gentlemen  be  made  Vice-Presidents  of 
the  Congress,  which  motion  was  unanimously  carried. 
The  President  declared  them  duly  elected.  The  Vice- 
Presidents,  thereupon,  at  the  invitation  of  the  President, 
came  forward  and  took  their  places  on  the  platform. 

[At  this  point  a  large  photograph  was  taken  of  the  officers  and  members 
of  the  Congress  and  others  present  in  Festival  Hall.] 

President  Brewer: 

We  will  now  have  the  pleasure  of  Listening  to  a  paper  on 
"The  Promotion  of  the  Settlement  of  International  Contro- 


MR.    FOSTER'S   PAPER 


versies  by  Resort  to  The  Hague  Tribunal  or  Reference  to  Special 
Commissions,"  to  be  read  by  the  Honorable  John  W.  Foster, 
former  Secretary  of  State  of  the  United  States. 

The  Promotion  of  the  Settlement  of  Interna- 
tional Controversies  by  Resort  to  The  Hague 
Tribunal  or  Reference  to  Special  Commissions, 

a  paper  by 

The  Honorable  John  W.  Foster,  LL.D.,  of  Wash- 
ington, D.  C,  a  Delegate  of  the  United  States  Govern- 
ment: 

The  subject  which  I  have  been  invited  to  discuss  involves  a 
consideration  of  the  adjustment  of  international  controversies 
by  arbitration  or  commissions,  and  the  merits  of  The  Hague 
Tribunal  as  the  instrument  of  such  adjustment. 

At  the  outset  a  seeming  embarrassment  presents  itself  in 
the  fact  that,  while  this  Congress  is  considering  the  subject, 
two  powerful  nations  are  engaged  in  a  sanguinary  and  wasteful 
conflict  which  threatens  to  disturb  the  peaceful  relations  of 
other  of  the  Great  Powers,  and  that  the  ruler  of  one  of  the  com- 
batants was  the  prime  mover  in  the  establishment  of  The  Hague 
Arbitration  Tribunal.  I  trust  that  notwithstanding  this  appar- 
ently inconsistent  and  contradictory  situation,  we  shall  find  in 
the  present  state  of  the  affairs  of  the  world  good  foundation  of 
encouragement  for  the  cause  of  arbitration  and  for  the  settle- 
ment of  international  controversies  by  peaceful  means,  and  that 
The  Hague  Tribunal  has  the  promise  of  a  wide  field  of  useful- 
ness opening  up  to  it  in  the  relations  of  the  nations  with  each 
other. 

In  an  assembly  composed  of  lawyers  and  jurists  I  seem 
called  upon  to  enter  more  in  detail  than  would  be  required  in 
the  discussion  of  the  subject  before  a  less  professional  audience 
upon  a  consideration  of  the  influences  leading  up  to  the  creation 
of  The  Hague  Tribunal,  the  circumstances  under  which  the 


lo       CONGRESS    OF   LAWYERS   AND    JURISTS 

Conference  was  called  which  framed  the  rules  by  which  the 
Tribunal  is  governed,  the  composition  and  spirit  of  the  Con- 
ference, the  provisions  of  the  convention  establishing  the 
Tribunal,  and  the  amendment,  if  any,  required  of  its  present 
constitution  or  rules. 

The  sentiment  calling  for  the  settlement  of  international 
controversies  by  peaceful  methods  rather  than  by  the  unreasoning 
and  bloody  arbitrament  of  war  is  not  entirely  of  modern  origin. 
At  the  different  periods  in  the  past  when  nations  have  emerged 
from  barbarism  into  a  more  civilized  state,  there  has  arisen 
among  men  of  good  will  a  desire  for  peace  on  earth.  In  the 
earliest  records  of  history  there  are  found  isolated  instances 
where  great  political  and  international  questions  have  been 
submitted  to  some  arbitrating  power.  But  the  earliest  attempt 
at  international  control  for  the  preservation  of  peace  is  found 
in  the  Amphictyonic  Council  of  the  Greek  States.  The  pre- 
vailing sentiment  of  that  era  among  men  of  enhghtenment  and 
humane  views  was  expressed  in  the  memorable  statement  of 
Thucvdides,  that  "it  is  wicked  to  proceed  against  him  as  a 
wrongdoer  who  is  ready  to  refer  the  question  to  an  arbitrator." 

It  must  be  confessed,  however,  that  the  prevaihng  spirit  of  the 
ancients  was  warhke,  but  even  the  triumph  of  the  great  warriors 
and  of  the  conquering  nations  was  not  without  benefit  to  man- 
kind. Under  the  universal  sway  of  the  Roman  legions  there 
came  times  when  the  doors  of  the  Temple  of  Janus  were  closed, 
and  peace  was  enforced  throughout  the  wide-spread  dominion 
of  the  Empire. 

As  the  nations  began  to  emerge  from  the  Dark  Ages,  the 
spirit  of  peace  made  feeble  efforts  to  assert  itself.  During  that 
long  night  of  war  and  devastation  the  Pope  was  the  only  restrain- 
ing influence.  The  earliest  advocates  for  another  spirit  to 
control  the  relations  of  nations  with  each  other  were  found  among 
the  scholars  and  writers  on  international  law.  Grotius,  whose 
treatise  on  the  Law  of  War  and  Peace  has  exerted  the  most 
profound  influence  upon  modern  nations,  in  quoting  the  state- 
ment of  Thucydides,  just  cited,  declared  that  "especially  are 


MR.   FOSTER'S    PAPER  ii 

Christian  kings  and  states  bound  to  try  this  way  of  avoiding 
war,"  and  he  proceeded  to  develop  the  idea  which  has  had  its 
partial  realization  in  The  Hague  Conference.     He  wrote: 

"Both  for  this  reason  and  for  others  it  would  be  useful,  and 
indeed  it  is  almost  necessary,  that  congresses  of  Christian  Powers 
should  be  held,  in  which  controversies  which  arise  among  some  of 
them  may  be  decided  by  others  who  are  not  interested,  and  in 
which  measures  may  be  taken  to  compel  the  parties  to  accept  peace 
on  equitable  terms." 

The  plan  of  Henry  IV  of  France  for  a  Council  or  Congress 
of  European  powers  to  maintain  peace  among  the  nations  was 
doubtless  inspired  by  high  motives,  but  it  had  the  defect  of  an 
enforced  combination  to  bring  about  the  Congress.  Later 
William  Penn  published  a  scheme  "for  the  Establishment  of  an 
European  Dyet,  Parliament,  or  Estates."  Likewise  the  Abbe 
Saint  Pierre  of  France,  Bentham,  Kant,  and  others  in  the 
seventeenth  and  eighteenth  centuries  devised  and  advocated 
plans  for  the  creation  of  a  congress  or  tribunal  to  secure  uni- 
versal and  perpetual  peace. 

One  of  the  most  important  events  tending  to  support  the 
project  of  such  a  congress  and  tribunal  was  the  adoption  by  the 
American  Colonies  of  the  Constitution  of  the  United  States  and 
the  creation  of  a  Supreme  Court,  before  which  the  States,  inde- 
pendent in  all  that  related  to  their  domestic  government,  agreed 
to  bring  or  to  submit  all  the  controversies  which  might  arise  be- 
tween them.  A  congress  or  union  such  as  was  formed  by  this 
Constitution  was  not  one  suitable  for  the  civiHzed  nations, 
seeking  for  a  combination  to  preserve  universal  peace,  but  the 
example  set  by  the  successful  operation  of  its  Supreme  Court 
was  the  cause  of  much  encouragement  to  the  advocates  of  an 
international  tribunal,  before  which  the  nations  might  submit 
their  controversies  for  peaceful  settlement. 

The  nineteenth  century  was  more  fruitful  than  any  similar 
era  in  the  submission  of  the  adjudication  of  special  arbitration 
tribunals  of  the  differences  of  nations  insolvable  by  diplomatic 
methods.     The  most  notable  of  these,  and  that  which  exerted 


12       CONGRESS    OF   LAWYERS   AND   JURISTS 


the  greatest  influence  upon  the  nations,  was  the  arbitration  of  the 
bitter  controversy  between  Great  Britain  and  the  United  States, 
growing  out  of  the  American  Civil  War,  and  the  irritating 
questions  existing  with  Canada,  which  were  peacefully  settled 
by  the  Treaty  of  Washington  of  187 1.  Of  this  the  British  states- 
man and  writer  John  Morley  says : 

"  The  Treaty  of  Washington  and  the  Geneva  Arbitration  stand 
out  as  the  most  notable  victory  in  the  nineteenth  century  of  the 
noble  art  of  preventive  diplomacy  and  the  most  signal  exhibition  in 
their  history  of  self-command  in  two  of  the  three  chief  democratic 
powers  of  the  western  world." 

As  between  these  two  kindred  nations  it  came  to  be  the  settled 
policy  to  adjust  their  differences  which  did  not  yield  to  diplomatic 
methods  by  a  reference  of  them  to  special  tribunals  created  for 
the  purpose.  In  1890  the  Congress  of  the  United  States  took 
a  long  step  in  advance  by  the  adoption  of  a  resolution  "that  the 
President  be  requested  to  invite  from  time  to  time,  as  fit  occasion 
may  arise,  negotiations  with  any  government  with  which  the 
United  States  has  or  may  have  diplomatic  relations,  to  the  end 
that  any  differences  or  disputes  arising  between  the  two  govern- 
ments which  cannot  be  adjusted  by  diplomatic  agency  may  be 
referred  to  arbitration,  and  be  peaceably  adjusted  by  such 
means."  And  in  1893  the  British  House  of  Commons  adopted 
a  resolution  approving  of  this  action  of  the  Congress  and  ex- 
pressing "the  hope  that  her  Majesty's  Government  will  lend 
their  ready  co-operation  to  the  Government  of  the  United  States 
for  the  accomplishment  of  the  object  had  in  view."  By  this 
action  these  two  great  nations  had  placed  themselves  on  record 
officially  as  favoring  the  most  complete  submissions  of  unsettled 
international  differences  to  the  peaceful  method  of  arbitration. 

At  this  period  a  somewhat  different  state  of  affairs  existed 
in  the  relations  of  the  different  powers  of  Continental  Europe. 
The  warHke  pohcy  of  Bismarck,  which  led  to  the  humiUation 
of  France  and  the  consohdation  of  Germany,  had  converted  the 
Continent  into  a  military  camp.  The  nations  were  vying  with 
each  other  in  building  up  their  armies  and  navies.     The  enor- 


MR.    FOSTER'S    PAPER 


mous  expenditure  to  maintain  these  establishments  was  becom- 
ing an  intolerable  burden,  and  the  countries  confronted  each 
other  in  a  state  of  armed  peace,  which  might  be  broken  by  an 
untoward  event. 

In  the  last  decade  of  the  nineteenth  century,  when  this  state 
of  affairs  was  reahzing  its  highest  development,  Bismarck  was 
retired  to  private  life,  and  a  new  Emperor  ascended  the  Russian 
throne.  It  is  very  doubtful  whether  the  Rescript  of  the  Emperor 
Nicholas  inviting  the  assembly  of  The  Hague  Conference  would 
have  been  issued  if  the  Prince  of  Blood  and  Iron  had  still 
remained  in  control  of  governmental  affairs  in  Germany.  His 
retirement  was  followed  by  a  relaxation  of  the  term  of  service, 
and  his  death,  in  1898,  deprived  the  military  party  of  its  greatest 
champion.  The  year  following  was  signalized  by  the  issuance 
of  the  invitation  of  the  Autocrat  of  All  the  Russias  to  the  govern- 
ments of  the  world  to  send  delegates  to  a  conference  to  consider 
some  means  of  reheving  the  nations  of  the  heavy  burden  of 
armament  which  was  oppressing  them,  and  devising  a  method 
for  preserving  peace  or  of  restraining  war. 

Europe  had  previously  witnessed  many  international  con- 
gresses or  conferences,  but  all  of  them  had  been  of  a  very  different 
character.  Mr.  Holls,  the  historian  of  The  Hague  Conference,^ 
in  noting  this  fact,  writes: 

"The  vital  distinction  between  these  gatherings  and  the  Peace 
Conference  at  The  Hague  is  that  all  of  the  former  were  held  at  the 
end  of  a  period  of  warfare,  and  their  first  important  object  was  to 
restore  peace  between  actual  belligerents;  whereas  the  Peace  Con- 
ference was  the  first  diplomatic  gathering  called  to  discuss  guaran- 
tees of  peace  without  reference  to  any  particular  war — past,  present, 
or  prospective." 

The  call  for  the  Conference  was  followed  by  a  hearty  approval 
in  the  United  States  and  much  commendation  in  Great  Britain, 
but  the  press  of  Europe  was  generally  skeptical  as  to  any  prac- 

*  The  Peace  Conference  at  The  Hague  and  its  bearing  on  International 
Law  and  Policy,  by  Frederick  W.  Holls,  a  member  of  the  Conference.  New 
York  and  London:  Macmillan  &  Co.  1900.  A  general  reference  is  cited 
of  this  work,  and  acknowledgment  made  of  the  use  of  its  material  in  much  of 
the  discussion  in  this  paper. 


14       CONGRESS    OF   LAWYERS   AND    JURISTS 

tical  results  to  flow  from  it.  Even  in  Russia,  whose  ruler  had 
initiated  the  Conference,  little  sympathy  was  manifested  with 
it.  Since  the  days  of  Peter  the  Great,  the  Russians  had  been 
led  to  believe  that  the  army  was  the  glory  and  bulwark  of  the 
emj)ire,  and  the  public  mind  was  hardly  prepared  to  admit 
that  its  maintenance  was  an  unwise  expenditure  of  pubhc  funds, 
or  that  it  was  an  unnecessary  burden  upon  the  country.  A 
feeling  existed  in  France  that  the  Conference  might  be  made 
an  obstacle  to  the  realization  of  the  hope  of  its  people  for  the 
recovery  of  its  lost  provinces  on  the  Rhine.  Many  journals  in 
Germany  combatted  the  controlling  idea  in  the  call  of  a  diminu- 
tion or  limitation  of  disarmament,  and  maintained  that  the 
military  establishment  was  not  impoverishing  the  state,  as  the 
money  was  expended  and  redistributed  in  the  country.  Mr. 
Pierce,  the  American  representative  at  St.  Petersburg,  reported 
to  his  government  that  "the  general  consensus  of  opinion  among 
the  members  of  the  Diplomatic  Corps  now  present  appears  to 
be  that  the  proposition  is  visionary  and  Utopian,  if  not  partaking 
of  quixotism.  Little  of  value  is  expected  to  result  from  the 
Conference,  and  indeed  every  diplomatic  officer  with  whom 
I  have  talked  seems  to  regard  the  proposition  with  that 
technical  skepticism  which  great  measures  of  reform  usually 
encounter." 

The  composition  of  the  Conference  was  a  subject  of  some 
complexity.  Were  the  South  African  republics  to  be  invited 
while  a  war  was  imminent  between  them  and  Great  Britain, 
involving  in  part  the  suzerain  rights  of  the  latter?  Was  the 
Pope  of  Rome  to  be  recognized  in  his  claim  as  a  temporal 
prince?  Other  embarrassing  questions  in  this  connection 
might  be  suggested.  The  Czar  avoided  these  questions  by 
confining  the  invitations  to  the  countries  having  diplomatic 
representatives  at  St.  Petersburg.  Unfortunately  this  omitted 
all  the  governments  on  the  American  hemisphere  except  the 
United  States  and  Mexico.  While  these  were  thus  deprived 
of  the  privilege  of  participating  in  the  Conference  and  assisting 
in  shaping  its  action,  they  have  taken  steps  to  secure  their 


MR.    FOSTER'S    PAPER  15 

adhesion  to  the  conventions  framed  by  it.  At  the  second  con- 
gress of  the  American  repubhcs  held  in  the  City  of  Mexico  in 

1902,  a  resolution  was  unanimously  passed  approving  of  the 
conventions,  and  soliciting  the  good  offices  of  the  United  States 
and  Mexico,  signatories  of  The  Hague  Conference,  to  secure 
their  admission  as  signatory  powers. 

While  it  is  highly  desirable  that  these  nations  should  be 
admitted  to  full  participation  in  the  conventions  adopted  by 
the  Conference,  there  does  not  seem  to  be  any  disposition  to 
deprive  them  of  the  most  material  benefits  resulting  from  these 
instruments.     As  evidence  of  this,  Venezuela  was  allowed,  in 

1903,  to  bring  her  cause  against  certain  of  the  European  powers 
before  The  Hague  Tribunal,  and  that  republic,  as  well  as  the 
other  governments  concerned,  have  accepted  the  award  of 
that  Tribunal. 

The  Rescript  of  the  Emperor  of  Russia,  which  constituted 
the  invitation  to  the  Conference,  was  issued  August  24,  1898. 
From  it  the  following  extracts,  indicating  its  scope,  are  made : 

"The  maintenance  of  general  peace,  and  a  possible  reduction  of 
excessive  armaments,  which  weigh  upon  all  nations,  present  them- 
selves in  the  existing  conditions  of  the  world  as  the  ideals  toward 
which  the  endeavors  of  all  governments  should  be  directed. 

"Filled  with  this  idea,  his  Majesty  has  been  pleased  to  order  me 
to  propose  to  all  the  governments  whose  representatives  are  accredited 
to  the  Imperial  Court,  the  meeting  of  a  Conference  which  would  have 
to  occupy  itself  with  this  grave  problem. 

"This  Conference  should  be,  by  the  help  of  God,  a  happy  presage 
for  the  century  which  is  about  to  open.  It  would  converge  in  one 
powerful  focus  the  efforts  of  all  States  which  are  sincerely  seeking  to 
make  the  great  idea  of  universal  peace  triumph  over  the  elements  of 
trouble  and  discord." 

The  invitation  of  the  Emperor  was  promptly  accepted  by 
the  United  States.  The  British  Government  hkewise  gave 
early  notice  of  its  intention  to  "wiUingly  accept,"  and  after 
some  delay,  made  necessary  by  the  calling  of  a  meeting  of  the 
Cabinet,  the  Prime  Minister  wrote :  "  His  Majesty's  Government 
gladly  accept  the  invitation  for  a  conference  to  discuss  the  best 
methods  of    attaining   the   two  objects  specified,  namely,  the 


i6       CONGRESS   OF   LAWYERS   AND    JURISTS 

diminution  of  armament  by  land  and  sea,  and  the  prevention  of 
armed  conflicts  by  pacific,  diplomatic  procedure." 

Notwithstanding  the  apparent  skeptical  sentiment  in  Con- 
tinental Europe,  all  the  governments  invited,  with  more  or  less 
delay,  accepted,  and  the  meeting  of  the  Conference  was  fixed 
for  May  i8,  1899,  at  The  Hague.  The  reason  for  the  selection 
of  the  capital  of  the  Netherlands  was  stated  by  the  Russian 
Minister  of  Foreign  Affairs  to  be  that  "His  Imperial  Majesty 
considers  it  advisable  that  the  Conference  should  not  sit  in  the 
capital  of  one  of  the  Great  Powers,  where  so  many  political 
interests  are  centered,  which  might,  perhaps,  impede  the  progress 
of  a  work  in  which  all  the  countries  are  equally  interested." 
And  M.  DE  Staal,  the  Russian  Ambassador,  in  opening  the 
Conference,  said: 

"In  the  quiet  surroundings  of  The  Hague,  ....  upon  the  his- 
toric grounds  of  the  Netherlands,  the  greatest  problems  of  the  polit- 
ical life  of  states  have  been  discussed ;  it  is  here,  as  we  may  say,  that 
the  cradle  of  the  science  of  international  law  has  stood;  for  centuries 
the  important  negotiations  between  European  powers  have  taken 
place,  and  it  is  here  that  the  remarkable  treaty  was  signed  which  im- 
posed a  truce  during  the  bloody  contest  between  states.  We  find 
ourselves  surrounded  by  great  historic  traditions." 

The  edifice  also  in  which  the  sessions  of  the  Conference 
were  held  had  special  appropriateness  for  the  objects  to  be 
attained.  It  assembled  in  the  Oranje  Zaal  of  the  famous  house 
in  the  wood  (Huis  den  Bosch),  decorated  by  some  of  the  best 
known  of  the  Dutch  artists.  In  welcoming  the  members  to 
this  hall,  the  Netherlands  Minister  of  Foreign  Affairs  said: 

"Among  the  greatest  of  the  allegorical  figures  which  you  will  ad- 
mire here,  there  is  one  relating  to  the  Peace  of  Westphalia,  which 
especially  merits  your  attention.  It  is  the  one  where  you  see  Peace 
entering  this  room  for  the  purpose  of  closing  the  Temple  of  Janus. 
I  hope,  gentlemen,  that  this  beautiful  allegory  will  be  a  good  omen 
for  your  labors,  and  that,  after  they  have  been  terminated,  you  will 
be  able  to  say  that  Peace,  which  here  is  shown  to  enter  this  room, 
has  gone  out  for  the  purpose  of  scattering  its  blessings  over  all  hu- 
manity." 

Under  such  inspiring  local  surroundings  the  members  of 
the  Conference  entered  upon  their  labors.     They  were  neither 


MR.    FOSTER'S    PAPER  17 

dreamers  nor  theorists,  but  men  of  eminently  practical  experience 
in  government,  diplomacy,  and  war. 

The  respective  nations  sent  as  their  representatives  their 
first  diplomatists,  most  erudite  jurists,  prominent  men  of 
affairs,  and  skillful  soldiers.  The  delegation  of  the  United 
States  comprised  Ambassador  Andrew  D.  White,  Seth  Low, 
Mayor  of  New  York,  Minister  Newell,  General  Crozier  of 
the  army,  Captain  Mahan  of  the  navy,  and  F.  W.  Holls  of  the 
New  York  bar;  and  the  delegations  from  the  other  countries  em- 
braced equally  able  and  experienced  men.  An  examination  of 
the  proceedings  will  show  that  throughout  the  deliberations  of 
the  Conference  they  were  animated  by  a  sincere  desire  to 
accomphsh  its  objects,  as  far  as  they  deemed  them  practical  of 
attainment. 

Its  assemblage  was  in  marked  contrast  with  the  congresses 
or  conferences  of  the  preceding  centuries,  in  the  complete 
absence  of  display  or  spirit  of  rivalry.  In  the  congresses  of 
Westphalia,  Ryswick  and  Utrecht,  for  instances,  there  was  an 
ostentatious  array  of  "coaches  and  six,"  a  numerous  retinue, 
and  a  constant  struggle  for  precedence  in  processions  and  the 
council  chambers.  Here  there  was  a  quiet  meeting  of  gentlemen 
without  display,  a  recognition  of  the  perfect  equahty  of  the 
smallest  independent  state,  and  a  seating  in  the  assembly  hall 
in  the  order  of  the  alphabetical  names  of  the  nations  they 
represented. 

Its  members,  too,  were  impressed  with  the  importance  of 
the  event.  In  calling  the  Conference  to  order,  at  its  first  session, 
the  Dutch  Minister  said:  "The  day  of  the  meeting  of  this 
Conference  will,  beyond  doubt,  be  one  of  the  days  which  will 
mark  the  history  of  the  century  which  is  about  to  close."  In 
his  opening  address,  the  President,  M.  de  Staal,  asserted  that  it 
"marks  a  great  date  in  the  history  of  humanity."  Its  historian 
styled  it  "the  first  great  Parhament  of  Man." 

With  such  elevated  ideas  the  Conference  entered  upon  its 
labors.  But  at  the  outset  it  met  with  discouragement  and 
failure. 


i8       CONGRESS   OF  LAWYERS   AND   JURISTS 

In  the  circular  letter  of  the  Russian  Minister  of  Foreign 
Affairs  of  January  ii,  1899,  following  the  Rescript  convok- 
ing the  Conference,  the  subjects  to  be  submitted  for  con- 
sideration were  set  forth  in  detail,  and  the  first  of  these  was 
as  follows: 

"  I .  An  understanding  not  to  increase,  for  a  fixed  period,  the  present 
effective  of  the  armed  military  and  naval  forces,  and  at  the  same  time 
not  to  increase  the  budgets  pertaining  thereto;  and  a  preliminary 
examination  of  the  means  by  which  reduction  might  even  be  effected 
in  future  in  the  forces  and  the  budgets  above  mentioned." 

The  evil  effects  of  the  vast  armaments  oppressing  the  nations 
of  the  earth  were  most  strikingly  set  forth  in  the  Rescript  of 
the  Czar.     I  quote  from  that  paper : 

"In  the  course  of  the  last  twenty  years  the  longings  for  a  general 
appeasement  have  been  especially  pronounced  in  the  consciences  of 

civilized  nations National  culture,  economic  progress,  and 

the  production  of  wealth  are  either  paralyzed  or  checked  in  their  de- 
velopment  The  economic  crises  and  the  continual  danger 

which  lies  in  the  massing  of  war  material  are  transforming  the  armed 
peace  of  our  days  into  a  crushing  burden,  which  the  peoples 
have  more  and  more  difficulty  in  bearing,  ....  and  will  in- 
evitably lead  to  the  very  cataclysm  which  it  is  desired  to  avert, 
and  the  horrors  of  which  make  every  thinking  man  shudder  in 
advance." 

In  a  conference  with  the  British  Ambassador  following  the 
Rescript,  the  Russian  Minister  of  Foreign  Affairs  said  that  the 
Emperor,  although  deeply  impressed  with  the  desirability  of  a 
general  disarmament,  did  not  look  for  an  immediate  realization 
of  the  aims  he  had  so  much  at  heart,  but  he  desired  to  initiate 
an  effort,  the  effects  of  which  could  only  be  gradual. 

But  when  the  Conference  came  to  consider  the  question, 
while  there  was  much  sympathy  felt  with  the  noble  ideas  enter- 
tained in  the  Czar's  Rescript,  it  was  found  that  the  subject 
was  of  a  very  complex  character,  and  that  it  would  be  difficult, 
if  not  impossible,  to  reach  any  agreement  which  would  meet  the 
Czar's  desires.  The  long  discussion  which  ensued  is  of  much 
interest,  but  I  can  indicate  something  of  its  spirit  by  extracts 
only  from  the  speeches  of  the  representatives  of  Germany  and 


MR.    FOSTER'S    PAPER  19 

France.  General  von  Schwarzhoff,  in  the  course  of  a  dis- 
course of  some  length,  said: 

"I  can  hardly  believe  that  among  my  honored  colleagues  there  is 
a  single  one  ready  to  state  that  his  sovereign,  his  government,  is  en- 
gaged in  working  for  the  inevitable  ruin,  the  slow  but  sure  annihila- 
tion, of    his  country The  German    people  is  not  crushed 

under  the  weight  of  charges  and  taxes,  it  is  not  hanging  on  the  brink 
of  an  abyss,  it  is  not  approaching  exhaustion  and  ruin.  Quite  the 
contrary,  public  and  private  wealth  is  increasing,  the  general  welfare 
and  standard  of  life  is  being  raised  from  one  year  to  another.  So 
far  as  compulsory  military  service  is  concerned,  which  is  so  closely 
connected  with  these  questions,  the  German  does  not  regard  this  as  a 
heavy  burden,  but  as  a  sacred  and  patriotic  duty,  to  which  he  owes 
his  country's  existence,  its  prosperity,  and  its  future." 

He  then  proceeded  to  maintain  that  the  proposition  to  limit 
armament  and  the  military  establishment  was  surrounded  with 
insurmountable  obstacles,  which  could  not  be  overcome  by  an 
international  convention.  M.  Bourgeois,  the  head  of  the 
French  delegation,  said: 

"I  listened  with  great  care  at  the  last  session  to  the  remarkable 
speech  of  General  von  Schwarzhoff.  He  presented  with  the  greatest 
possible  force  the  technical  objections  which,  according  to  his  view, 
prevented  the  committee  from  adopting  the  propositions  (Russian) 
of  Colonel  Gilinsky.  It  did  not,  however,  seem  to  me  that  he,  at 
the  same  time,  recognized  the  general  ideas  in  pursuance  of  which 
we  are  here  united.  He  showed  us  that  Germany  is  easily  support- 
ing the  expense  of  its  miHtary  organization,  and  he  reminded  us  that 
notwithstanding  this,  his  country  was  enjoying  a  very  great  measure 
of  commercial  prosperity.  I  belong  to  a  country  which  also  supports 
readily  all  personal  and  financial  obligations  imposed  by  national 
defense  upon  its  citizens,  and  we  have  not  been  hindered  in  the  in- 
crease of  our  financial  prosperity.  But  General  voN  Schwarzhoff 
will  surely  recognize  with  me  that  if  in  his  country,  as  well  as  in  mine, 
the  great  resources  which  are  now  devoted  to  military  organization 
would,  at  least  in  part,  be  put  to  the  service  of  peaceful  and  produc- 
tive activity,  the  grand  total  of  the  prosperity  of  each  country  would 
not  cease  to  increase  at  an  even  more  rapid  rate 

"Gentlemen,  the  object  of  civilization  seems  to  us  to  be  to  aboHsh 
more  and  more  the  struggle  for  life  between  men,  and  to  put  in  its 
stead  an  accord  between  them  for  the  struggle  against  the  unrelenting 
forces  of  matter.  This  is  the  same  thought  which,  upon  the  initia- 
tion of  the  Emperor  of  Russia,  it  is  proposed  that  we  should  promote 
by  international  agreement.     If  sad  necessity  obliges  us  to  renounce 


20       CONGRESS   OF   LAWYERS   AND   JURISTS 

for  the  moment  an  immediate  and  positive  engagement  to  carry  out 
this  idea,  ....  we  shall  not  have  labored  in  vain  if,  in  a  formula 
of  general  terms,  we  at  least  indicate  the  goal  to  be  approached,  as 
we  all  hope  and  wish,  by  all  civilized  nations." 

Notwithstanding  the  support  given  to  the  Russian  proposi- 
tion by  France,  one  of  the  most  martial  of  the  nations,  the  objec- 
tions voiced  by  the  German  delegate  were  too  serious  to  be 
overcome.  The  sentiment  of  the  members  was  that  the  Con- 
ference should  avoid  forming  majority  and  minority  parties, 
and  hence  nothing  should  be  put  forth  as  its  action  which  could 
not  command  a  practically  unanimous  support.  The  most 
that  could  be  accomplished,  therefore,  was  a  general  expression 
of  sentiment  on  the  subject  in  the  following  declarations,  which 
were  unanimously  adopted: 

"The  Conference  is  of  opinion  that  the  restriction  of  military 
charges,  which  are  at  present  a  heavy  burden  on  the  world,  is  ex- 
tremely desirable  for  the  increase  of  the  material  and  moral  welfare 
of  mankind. 

"The  Conference  expresses  the  wish  that  the  governments,  taking 
into  consideration  the  proposals  made  at  the  Conference,  may  ex- 
amine the  possibility  of  an  agreement  as  to  the  limitation  of  armed 
forces  by  land  and  by  sea,  and  of  our  budgets." 

While  there  was  much  regret  felt  at  the  failure  to  adopt  some 
initiative  for  the  limitation  of  armament,  it  was  something 
gained  that  a  public  declaration,  by  such  a  body,  was  made 
that  the  present  mihtary  establishments  are  a  heavy  burden  on 
the  world,  which  it  is  extremely  desirable,  in  the  interest  of  the 
material  and  moral  welfare  of  mankind,  should  be  restricted, 
and  that  it  was  the  duty  of  the  governments  of  the  earth  to  seek 
to  reach  an  agreement  to  that  end. 

It  must  be  recognized  that  the  restriction  or  reduction  of 
armament  is  a  most  difficult  political  problem.  The  system 
has  grown  up  in  recent  years  of  vast  armies  and  formidable 
navies  on  the  ground  of  self-defense.  Never  has  the  ancient 
proverb,  Si  vis  pacem,  para  bellum,  had  greater  force  than 
to-day.  Under  its  practice,  for  instance,  France,  which  has 
had  practically  unbroken  peace  for  more  than  a  generation. 


MR.    FOSTER'S    PAPER  21 

and  is  to-day  on  amicable  relations  with  all  the  world,  supports 
a  much  greater  military  estabhshment  than  when  Napoleon 
was  at  war  with  almost  all  the  nations  of  Europe. 

As  my  auditors  are  largely  Americans,  I  may  be  pardoned  a 
reference  to  the  situation  in  this  country.  I  rejoice  that  in  the 
past  we  have  been  a  peaceful,  not  a  mihtary,  people.  Our  na- 
tional pride  has  been  mainly  in  their  achievements  in  the  peace- 
ful pursuits  of  mankind.  It  has  been  a  source  of  regret  to  many 
of  us  that  the  fruits  of  war  have  made  necessary  recently  a  con- 
siderable increase  in  our  standing  army.  It  has  been  our  boast 
that  a  visitor  to  our  shores  from  the  military  countries  of  Europe 
could  traverse  our  continent  from  ocean  to  ocean  without 
meeting  a  soldier.  Law  and  order  have  been  enforced  by  the 
civil  officials.     We  want  no  change  in  that  condition. 

Our  growing  navy  has  justly  become  the  pride  of  the  country, 
but  the  burden  of  its  construction  and  maintenance  is  awakening 
public  attention.  At  the  last  session  of  Congress  a  prominent 
and  conservative  member  of  the  ruhng  party  sounded  a  note 
of  warning  that  our  naval  expenditures  had  reached  one  hundred 
milhons  of  dollars  annually,  and  would  amount  to  two  hundred 
millions  annually  when  the  present  plans  adopted  for  enlarge- 
ment were  realized.  It  has  been  reported  in  the  public  press 
that  the  Secretary  of  the  Navy  has  announced  himself  in  favor 
of  a  navy  equal  to  that  of  the  greatest  naval  power  in  the  world. 
I  trust  he  has  been  incorrectly  reported. 

I  cannot  beheve  that  such  is  the  sentiment  of  our  people. 
We  neither  wish  nor  need  to  enter  into  competition  with  the 
military  nations,  either  respecting  our  army  or  our  navy.  We 
should  maintain  ourselves  in  the  position  we  have  held  in  the 
past  as  advocates  of  peace  and  peaceful  methods  of  settUng 
international  controversies,  and  our  government  should  hold 
itself  ready  to  respond  to  the  call  of  The  Hague  Conference,  in 
seeking  an  agreement  to  restrict  armaments.  We  should  bear 
in  mind  the  sentiments  uttered  by  Washington  : 

"My  first  wish  is  to  see  this  plague  to  mankind  (war)  banished 
from  the  earth,  and  the  sons  and  daughters  of  this  world  employed 


22       CONGRESS   OF   LAWYERS   AND   JURISTS 

in    more   pleasing    and    innocent   amusements   than    in    preparing 
implements  and  exercising  them  for  the  destruction  of  mankind." 

It  is  somewhat  foreign  to  the  subject  under  consideration  to 
examine  in  detail  other  results  of  the  Conference  not  relating 
to  arbitration,  and  it  may  suffice  to  state  that  it  agreed  upon  and 
executed  two  conventions  for  the  regulation  of  war  on  land  and 
at  sea,  which  embodied  the  wisest  and  most  humane  principles 
of  military  conduct  resulting  from  a  study  and  discussion  of  these 
matters  during  the  past  half-century,  and  which  had  their  first 
codification  in  the  "Instructions  for  the  Guidance  of  the  Armies 
of  the  United  States,"  issued  at  the  beginning  of  the  Civil  War. 
Had  the  Conference  accomplished  nothing  more  than  these  two 
conventions  and  the  accompanying  declarations,  it  would  have 
been  entitled  to  the  claim  of  one  of  the  most  useful  international 
assemblies  in  history. 

But  we  come  now  to  consider  the  most  important  and  the 
crowning  work  of  The  Hague  Conference — the  Convention  for 
the  Peaceful  Adjustment  of  International  Differences.  It  was 
reached,  not  without  much  difficulty  and  discussion,  and  it  was 
necessary,  in  order  to  secure  unanimity  of  action,  to  compromise 
many  conflicting  views,  and  for  the  friends  of  arbitration  to 
yield  some  points  regarded  by  them  as  of  much  importance. 

The  preamble  to  the  convention,  in  which  all  the  govern- 
ments represented  in  the  Conference  joined,  contains  a  very 
important  declaration  of  principles,  which  shows  that  in  senti- 
ment at  least  the  nations  of  the  earth  have  reached  a  high 
standard  of  international  justice  and  humanity.     It  is  as  follows : 

"Animated  by  a  strong  desire  to  concert  for  the  maintenance  of 
the  general  peace: 

"Resolved  to  second,  by  their  best  efforts,  the  friendly  settlement 
of  international  disputes; 

"Recognizing  the  solidarity  which  unites  the  members  of  the  soci- 
ety of  civilized  nations; 

"Desirous  of  extending  the  empire  of  law,  and  of  strengthening  the 
appreciation  of  international  justice; 

"Convinced  that  the  {)ermanent  institution  of  a  Court  of  Arbitra- 
tion, accessible  to  all,  in  the  midst  of  the  independent  powers,  will 
contribute  effectively  to  this  result; 


MR.   FOSTER'S    PAPER  23 

"Having  regard  to  the  advantages  attending  the  general  and  regu- 
lar organization  of  arbitral  procedure; 

"Sharing  the  opinion  of  the  august  initiator  of  the  International 
Peace  Conference  that  it  is  expedient  to  solemnly  estabhsh,  by  an 
international  agreement,  the  principles  of  equity  and  right  on  which 
repose  the  security  of  states  and  the  welfare  of  peoples,  etc." 

The  convention  or  treaty  is  divided  into  four  titles  or  general 
provisions.  The  first  consists  of  one  brief  paragraph,  and  is 
merely  declaratory,  but  it  is  important  because  it  solemnly 
commits  by  distinct  agreement  the  powers  joining  in  the  con- 
vention "to  use  their  best  efforts  to  insure  the  pacific  settlement 
of  international  differences." 

The  two  following  titles  contain  provisions  having  in  view 
the  carrying  into  effect  of  the  foregoing  declaratory  agreement 
by  means — i.  Of  a  Resort  to  Good  Offices  and  Mediation;  and 
2.  Of  International  Commissions  of  Inquiry.  Thirteen  articles 
of  the  convention  relate  to  these  two  measures;  but  as  the  topic 
assigned  me  has  reference  especially  to  The  Permanent  Court 
of  Arbitration,  I  pass  to  the  fourth  title,  which,  in  forty-seven 
articles,  creates  the  Court,  defines  its  jurisdiction,  and  the  prin- 
ciples which  are  to  guide  it,  specifies  the  manner  in  which  its 
members  are  chosen,  the  rules  governing  its  procedure,  its 
awards,  and  other  necessary  details.  I  must  presume  upon 
the  acquaintance  of  the  members  of  the  Congress  with  these 
provisions,  and  address  myself  to  some  of  their  salient  features  or 
those  which  have  given  rise  to  discussion  or  criticism. 

The  first  distinctive  feature  of  the  arbitration  convention  is 
that  it  has  no  compulsory  stipulation.  It  declares  specifically 
in  favor  of  "a  pacific  settlement  of  international  controversies," 
and  provides  methods  of  their  settlement  by  means  of  (i)  media- 
tion, (2)  good  offices,  (3)  commissions  of  inquiry,  and  (4)  a  court 
of  arbitration ;  but  no  nation  is  pledged  to  resort  to  any  of  these 
methods,  and  especially  is  none  compelled  to  submit  its  cause 
to  The  Hague  Permanent  Court.  This  feature  is  regarded  by 
the  most  earnest  advocates  of  arbitration  as  a  serious  defect  of 
the  treaty,  but  it  was  early  made  apparent  in  the  Conference  that 
there  could  be  no  agreement  for  compulsory  stipulations,  and 


24       CONGRESS   OF  LAWYERS  AND   JURISTS 

it  was  even  found  difficult  to  bring  about  a  concurrence  on  the 
convention  as  it  stands. 

The  French  delegates,  who  throughout  the  Conference  were 
the  zealous  friends  of  arbitration,  sought  to  secure  the  adoption 
of  a  provision  investing  the  bureau  created  at  The  Hague  to 
act  as  the  chancellery  or  clerk's  office  of  the  Permanent  Court, 
with  an  international  mandate,  in  case  there  should  develop 
between  two  or  more  of  the  signatory  states  one  of  the  differences 
recognized  as  being  a  proper  subject  for  arbitration,  to  remind 
the  disputing  parties  of  the  provisions  of  the  convention  for 
arbitration.  But  even  this  apparently  harmless  provision  met 
with  the  opposition  of  one  of  the  Great  Powers,  and  had  to  be 
omitted. 

The  sentiment,  however,  in  favor  of  compulsory  arbitration 
was  so  strong  that  an  article  was  inserted  in  the  convention  re- 
serving the  right  to  any  of  the  signatory  powers  to  conclude  gen- 
eral or  special  agreements,  extending  the  obligation  to  submit 
controversies  to  arbitration  in  all  cases  which  they  considered 
suitable  for  such  submission.  It  is  a  happy  augury  for  the 
eventual  recognition  of  the  duty  to  submit  all  international 
disputes  to  arbitration  to  note  that  treaties  of  the  character 
indicated  have  been  already  entered  into  between  a  number  of 
the  leading  powers  of  Europe. 

France  has  the  honor  of  taking  the  initiative  in  this  new  and 
advanced  movement.  In  October  of  last  year  its  government 
entered  into  a  treaty  with  that  of  Great  Britain  stipulating  for 
a  period  of  five  years  to  submit  a  certain  specified  class  of  cases 
to  The  Hague  Tribunal;  similar  conventions  have  been  made 
by  each  of  them  separately  with  other  European  powers;  and 
other  of  these  powers  have  united  in  identical  conventions.  It 
is  gratifying  to  know  that  as  a  step  in  the  same  direction  the 
American  Secretary  of  State,  Mr.  Hay,  has  consulted  the 
Senate,  as  the  co-ordinate  branch  of  the  treaty-making  power, 
on  the  subject,  and  it  is  confidently  expected  that  at  the  next 
session  of  the  Senate  the  President  of  the  United  States  will 
submit  to  that  body  for  approval  arbitration  treaties  with  a 


MR.   FOSTER'S    PAPER  25 

number  of  nations  with  provisions  similar  to  those  entered  into 
between  the  European  governments. 

The  Hague  Convention  recognizes  two  classes  of  controversies 
as  suitable  for  submission  to  The  Hague  Court,  to- wit,  questions 
of  a  judicial  character  and  those  regarding  the  interpretations 
or  apphcation  of  international  treaties.  The  article  of  the 
arbitration  treaty  between  France  and  Great  Britain  and  the 
other  European  powers  just  alluded  to  is  as  follows: 

"Difference  of  a  judicial  order,  or  relative  to  the  interpretation  of 
existing  treaties  between  the  two  contracting  parties  which  may  arise, 
and  which  it  may  not  have  been  possible  to  settle  by  diplomacy,  shall 
be  submitted  to  the  Permanent  Court  of  Arbitration  established  by 
the  Convention  of  July  29, 1899,  at  The  Hague,  on  condition,  however, 
that  neither  the  vital  interests,  nor  the  independence  or  honor  of 
the  two  contracting  states,  nor  the  interest  of  any  state  other  than  the 
two  contracting  states,  are  involved." 

While  this  stipulation  is  a  step  in  advance  of  The  Hague 
Convention,  in  that  it  makes  arbitration  compulsory,  it  is  a 
quahfication  or  limitation  of  that  treaty,  in  that  it  excepts  from 
the  stipulation  such  of  the  two  classes  of  cases  as,  in  the  judg- 
ment of  the  contracting  parties,  involve  the  vital  interests,  the 
independence,  or  the  honor  of  either  state.  This  reservation 
raises  the  important,  broad,  and  difficult  question  of  what 
questions  are  proper  for  submission  to  international  arbitration. 
Questions  involving  the  independence  of  a  sovereign  state  may 
not  be  difficult  of  determination,  but  the  "vital  interests"  of 
a  state,  or  its  "national  honor,"  may  become  very  vague  or 
elastic,  and  dependent  in  great  measure  upon  the  temperament 
or  condition  of  the  authority  having  the  right  to  determine  or 
allege  them. 

In  the  interest  of  the  peace  of  the  nations,  it  is  of  the  utmost 
importance  that  the  exceptions  to  arbitral  submission  be  as 
few  and  restricted  as  possible.  It  is  the  aim  of  the  interested 
friends  of  the  cause  that  the  nations  may  ultimately  reach  the 
position  where  they  will  agree  to  submit  all  international  con- 
troversies, without  exception,  to  a  peaceful  method  of  adjust- 
ment.    There  have  been  some  recent  notable  declarations  ema- 


26       CONGRESS   OF  LAWYERS  AND   JURISTS 

nating  from  important  bodies  to  that  effect.  The  First  Confer- 
ence of  the  American  States,  embracing  all  the  independent 
countries  of  the  hemisphere,  which  assembled  in  Washington 
in  1890,  framed  and  recommended  the  adoption  of  an  arbitration 
treaty,  which  contained  the  stipulation  that  "the  sole  question 
which  any  nation  is  at  liberty  to  refuse  to  arbitrate  is  a  question 
which  may  imperil  its  independence."  In  closing  the  delibera- 
tions of  that  Conference,  its  President,  James  G.  Blaine,  who 
by  some  has  been  charged  with  aggressive  statesmanship, 
referring  to  this  arbitration  treaty,  said : 

"  We  hold  up  this  new  Magna  Charta  which  abolishes  war,  and 
substitute  arbitration  between  the  American  republics  as  the  first 
and  great  fruit  of  the  International  American  Conference." 

The  Washington  Conference  on  International  Arbitration, 
held  January  last,  was  a  distinguished  and  representative  body 
of  men  in  public  life,  in  the  professions,  the  industries,  and 
commerce.  Its  Committee  on  Resolutions  was  composed  of  two 
of  the  American  members  of  The  Hague  Court,  five  ex-ambassa- 
dors and  ministers,  three  of  the  first  lawyers  in  the  country,  and 
other  able  men.  The  subject  of  the  reservations  or  exceptions 
proper  to  be  made  in  arbitration  treaties  were  fully  considered, 
and  they  reported  through  their  chairman.  Judge  George  Gray, 
that  it  was  the  duty  of  the  United  States  to  enter  into  treaties 
with  Great  Britain  and  other  powers  for  the  submission  to  The 
Hague  Permanent  Court  or  some  special  tribunal  of  "a// 
differences  which  they  may  fail  to  adjust  by  diplomatic  negotia- 
tion." 

The  national  honor  is  a  matter  which  our  first  impulse  of 
patriotism  would  decide  was  beyond  the  province  of  arbitration, 
but  a  more  dispassionate  consideration  will  lead  us  to  see  that  it 
is  not  always  so.  In  the  heat  of  the  dispute  over  what  are 
known  as  the  "Alabama  claims,"  involving  important  questions 
of  international  law  and  high  state  policy,  when  the  American 
Minister  in  London  proposed  arbitration.  Lord  Russell  replied : 

"It  appears  to  her  Majesty's  Government  that  neither  of  these 
questions  could  be  put  to  a  foreign  government  with  any  regard  to 


MR.    FOSTER'S    PAPER  27 

the  dignity  and  character  of  the  British  crown  and  the  British  nation. 
Her  Majesty's  Government  are  the  sole  guardians  of  their  own  honor 
....  and  must  therefore  decline  either  to  make  reparation  and 
compensation  ....  or  to  refer  the  question  to  any  foreign  state." 

But  when  the  passions  of  the  hour  had  passed,  the  British 
Government  saw  how  unwise  it  was  to  allow  an  attitude  so  sensi- 
tive and  unsubstantial  as  the  so-styled  "national  honor"  to 
obstruct  a  peaceful  settlement  of  its  controversies  with  a  kin- 
dred nation,  and  the  Treaty  of  Washington  of  187 1  brought 
forth  the  Geneva  Arbitration,  so  beneficent  in  its  results  for  both 
nations  and  the  world.  A  century  and  less  ago  public  social 
sentiment  in  England  and  America  demanded  that  a  personal 
affront,  supposed  or  real,  should  be  atoned  for  by  the  blood  of 
the  aggressor,  but  the  real  gentleman  of  English  and  American 
society  of  to-day  leaves  the  vindication  of  his  honor  to  the  courts 
of  justice  or  public  opinion.  There  is  no  reason  why  the  same 
course  should  not  be  pursued  by  nations.  Mr.  James  Bryce, 
in  discussing  the  article  of  the  Anglo-French  treaty  cited  by 
me,  says: 

"The  exception  of  'honor,'  made  in  the  treaty  just  quoted, 
is  of  very  doubtful  merit,  because  questions  of  so-called  national 
honor  are  often  just  the  questions  which  most  need  to  be  referred  to 
arbitration,  inasmuch  as  they  are  those  which  a  nation  finds  it  hard- 
est to  recede  from  when  it  has  once  taken  up  a  position,  so  that  the 
friendly  intervention  of  a  third  party  is  especially  valuable 

"The  value  of  arbitration,  or  of  conciliation,  by  a  third  party,  lies 
not  merely  in  its  providing  a  means  of  determining  a  difficult  issue  of 
law  or  fact,  but  in  its  making  it  easy  for  the  contracting  parties  to 
abate  their  respective  pretentions  without  any  loss  of  dignity." 

It  is  asserted  that  many  political  questions  are  not  suitable 
subjects  for  submission  to  arbitration.  The  questions  which 
brought  on  the  Russo-Japanese  war  are  cited  among  those 
which  are  not  arbitrable,  and  likewise  the  Monroe  Doctrine. 
None  of  the  leading  nations  are  prepared  to-day  to  enter  into  a 
treaty  of  unconditional  arbitration,  but  the  oftener  they  submit 
their  differences  to  arbitration,  the  nearer  they  approach  that 
goal.  Great  Britain  and  the  United  States  have  since  the  War 
of  181 2  submitted  all  their  many  matters  of  dispute  to  a  peaceful 


28       CONGRESS   OF  LAWYERS  AND   JURISTS 

method  of  adjustment.  An  examination  of  the  numerous 
arbitration  treaties,  embracing  a  great  variety  of  subjects,  will 
show  that  no  question  can  in  the  future  arise  between  them 
which  will  more  seriously  involve  their  territory,  the  honor  of  the 
countries,  their  vital  interests,  or  their  independence,  than  those 
which  have  already  been  submitted  to  arbitration. 

Hence,  so  far  as  Great  Britain  is  concerned,  it  may  be  safely 
asserted  that  the  Washington  Conference  committed  no  error 
in  recommending  that  the  United  States  enter  with  that  power 
into  a  treaty  of  unconditional  arbitration.  If  after  nearly  a 
century  of  peaceful  settlement  of  their  disputes,  these  two 
countries  can  make  such  a  convention,  they  should  hardly  be 
styled  dreamers  or  enthusiasts  who  look  forward  to  the  time 
when  all  nations  of  the  earth,  through  peaceful  intercourse  and 
forbearance,  will  find  a  better  method  of  adjusting  their  differ- 
ences than  by  the  arbitrament  of  war. 

In  The  Hague  Conference  the  question  arose  as  to  what 
stipulation  should  be  inserted  in  the  treaty  guaranteeing  the 
enforcement  of  the  award  of  a  court  of  arbitration.  In  this 
instance,  as  when  the  subject  of  compulsory  arbitration  was 
under  discussion,  it  was  found  that  if  constraint  was  to  be  applied 
to  a  recalcitrant  power,  it  would  have  to  be  through  some  kind 
of  international  military  force,  and  the  delegates  were  in  no 
frame  of  mind  to  consider  such  an  alternative.  Besides,  it  was 
cited  that  during  the  many  arbitration  cases  of  the  past  century, 
a  sense  of  equity  and  the  force  of  public  opinion  had  been  suffi- 
cient to  secure  acceptance  of  the  award;  and  the  conference 
regarded  it  as  sufficiently  effective  to  insert  an  article  declaring 
that  "the  agreement  of  arbitration  impHes  the  obligation  to 
submit  in  good  faith  to  the  decision  of  the  arbitral  tribunal." 

One  of  the  most  important  questions  discussed  by  the  Con- 
ference in  connection  with  the  arbitration  convention  was 
whether  its  provisions  should  be  carried  out  through  provisional 
or  special  tribunals,  or  whether  a  permanent  court  should  be 
created  for  that  purpose.  The  United  States  was  from  the 
beginning  in  favor  of  the  creation  of  a  permanent  court.     In 


MR.    FOSTER'S    PAPER  29 

1896  the  New  York  State  Bar  Association  had  laid  before  the 
President  a  memorial  setting  forth  this  as  the  essential  feature 
of  any  general  scheme  of  arbitration,  and  the  delegates  of  the 
United  States  to  the  Conference  had  been  instructed  to  make 
this  a  cardinal  point  in  their  propositions.  But  the  honor  fell 
to  the  Chairman  of  the  British  Delegation,  Lord  Pauncefote, 
to  become  its  special  champion  in  the  dehberations.  It  was 
antagonized  by  Germany,  but  the  sentiment  was  so  strongly  in 
its  favor,  that  the  German  delegates  were  induced  to  withdraw 
their  objection,  and  provision  was  made  in  the  convention  for  a 
Permanent  International  Court.  This  action  was  a  source  of 
much  gratification  to  the  advocates  of  international  arbitration, 
who  had  for  centuries  looked  forward  with  hope  to  the  estab- 
lishment by  the  nations  of  the  earth  of  some  form  of  congress 
or  court  which  should  have  a  continuous  existence  and  be  clothed 
with  functions  for  the  preservation  of  peace. 

The  provisions  of  the  convention  are  that  each  of  the  sig- 
natory powers  shall  appoint  for  a  term  of  six  years  as  members 
of  the  Permanent  Court  not  more  than  four  persons,  "of  recog- 
nized competence  in  questions  of  international  law,  enjoying 
the  highest  moral  reputation."  These  persons  constitute  a 
permanent  Court  of  arbitration,  accessible  at  all  times,  and 
acting  in  accordance  with  the  prescribed  rules  of  procedure. 

The  members  of  the  Court  thus  constituted  do  not  sit,  how- 
ever, as  a  collective  body,  but  when  two  or  more  nations  have  a 
case  to  submit  to  arbitration  they  select  by  mutual  agreement 
one,  three,  or  five  members,  as  may  be  stipulated,  from  the 
persons  constituting  the  Court,  who  will  act  as  the  Tribunal  to  try 
the  case.  So  that  it  may  happen  that  some  members  of  the  Court 
may  never  be  called  upon  to  discharge  the  functions  of  a  judge. 

But  it  was  thought  wise  not  to  restrict  the  hberty  of  action 
of  the  arbitrating  nations,  and  they  have  been  left  free  to  select 
the  judges  from  the  permanent  panel,  so  to  speak,  of  the  Court. 
Likewise,  though  The  Hague  is  designated  as  the  place  where 
the  Court  shall  hold  its  sessions,  another  place  may  be  designated 
by  agreement  of  parties  litigant.     Also,  while  detailed  rules  of 


30       CONGRESS   OF   LAWYERS  AND   JURISTS 

procedure  are  provided  in  the  convention,  these  may  be  varied 
by  special  agreement  of  the  parties. 

The  convention  contains  a  provision  (Article  52)  that  the 
award  of  the  Tribunal  shall  be  accompanied  by  a  statement 
of  the  reasons  upon  which  it  is  based,  but  this  article  was  not 
adopted  without  serious  objection  in  the  Conference.  It  was 
recognized  that  much  advantage  would  be  derived  from  the 
opinions  of  judges  of  such  high  authority  in  the  creation  of  a 
body  of  international  jurisprudence,  but  it  was  urged  that  the 
opinions  might  contain  criticism  of  the  litigating  parties,  or 
other  powers,  harmful  and  unnecessary.  This  surmise  became 
a  reality  when  during  this  year  the  President  of  the  Court  in 
the  Venezuela  Arbitration,  who  was  a  Russian,  made  some 
utterances  which  were  seriously  resented  by  the  Japanese. 

The  question  of  the  finality  of  the  award  was  much  debated 
in  the  Conference.  It  was  contended  that  a  rehearing  of  a 
case  once  decided  would  diminish  the  moral  authority  of  the 
Tribunal  and  the  weight  otherwise  given  to  its  first  decision. 
The  American  proposition  was  that  a  hearing  should  be  granted 
"upon  presentation  of  evidence  that  the  judgment  contained 
a  substantial  error  of  fact  or  of  law."  The  practice  in  the 
United  States  sustained  such  a  provision,  and  its  government 
had  had  experience  which  showed  that  some  provision  for 
rehearing  was  desirable.  For  instance,  in  the  Mexican  claims 
commission,  the  umpire.  Sir  Edward  Thornton,  had  decided 
that  when  his  decision  was  once  rendered  his  relation  to  the 
case  was  canceled,  and  that  even  if  fraud  was  shown  to  have 
been  practiced  upon  the  commission  the  award  could  not  be 
reopened,  but  relief  would  have  to  be  sought  by  a  direct  appeal 
to  the  government  concerned.  The  Conference  finally  agreed 
upon  a  provision  that  a  rehearing  should  be  had  "only  on  the 
discovery  of  new  facts,  of  such  a  character  as  to  exercise  a 
decisive  influence  upon  the  judgment,  and  which  at  the  time  of 
the  judgment  were  unknown  to  the  Tribunal  itself  and  to  the 
parties  demanding  the  rehearing." 

The  convention  contains  a  stipulation  that  the  proceedings 


MR.    FOSTER'S    PAPER  31 

in  a  case  should  embrace  oral  argument  of  counsel  before  the 
Tribunal.  The  prevailing  practice  in  arbitration  during  the 
last  century  was  to  accompany  the  documentary  evidence  in 
the  case  with  a  printed  or  written  argument  only.  The  Geneva 
Arbitration  of  1872  gave  the  right  to  the  Tribunal  to  call  for  oral 
argument  on  any  specific  question,  and  a  brief  oral  discussion 
was  accordingly  had.  In  the  Fur  Seal  Arbitration  at  Paris,  in 
1893,  th^  treaty  stipulated  for  general  oral  argument,  and 
several  weeks  were  occupied  by  counsel;  and  a  similar  practice 
was  observed  in  the  Venezuela  Boundary  Arbitration  at  Paris 
in  1899.  The  Hague  Convention  recognizes  this  as  the  proper 
practice.  Its  effect  is  to  considerably  prolong  the  sessions  of 
the  Tribunal,  but  it  affords  the  htigating  parties  a  more  satisfac- 
tory elucidation  of  the  questions  at  issue. 

Having  reviewed  the  more  important  provisions  of  The 
Hague  Arbitration  Convention,  I  pass  to  a  consideration  of  the 
practical  working  of  the  Permanent  Court  organized  under  it. 

When  The  Hague  Conference  adjourned  there  was  a  wide- 
spread belief  that  it  had  accomplished  little  towards  the  preven- 
tion of  war.  It  had  failed  to  agree  upon  either  the  restriction 
or  diminution  of  the  vast  armaments  which  were  oppressing 
the  nations  and  threatening  the  peace  of  the  world.  The  Arbi- 
tration Convention,  which  left  it  purely  optional  with  the  nations 
to  observe  its  provisions,  did  not  impress  the  general  public 
as  of  much  practical  value;  and  there  was  a  skeptical  feeling 
that  no  powerful  nation  would  ever  invoke  the  services  of  the 
Permanent  Court  to  save  it  from  an  armed  conflict  with  another 
state. 

However,  when  the  convention  was  submitted  to  the  govern- 
ments to  ratify  the  action  of  their  delegates,  no  one  of  them 
cared  to  reject  it.  The  friends  of  arbitration  were  reassured 
when  the  intelligence  flashed  across  the  Atlantic  that  the  Senate 
of  the  United  States  had  unanimously  approved  it,  and  that  the 
President  had  promptly  proclaimed  it  to  the  world.  The  other 
signatory  nations  took  similar  action.  The  convention  thus 
becoming  a  completed  instrument,  the  respective  governments 


32       CONGRESS   OF  LAWYERS   AND   JURISTS 

appointed  from  their  most  distinguished  pubhc  men  and  able 
jurists  the  members  of  the  Permanent  Court.  But  the  world's 
query  was:  What  nations  will  now  come  forward  to  submit  to 
the  Court  a  controversy  insolvable  by  diplomacy  ? 

It  is  a  matter  of  pride  for  this  continent  that  the  two  greatest 
republics  of  America  should  be  the  first  to  invoke  the  services 
of  The  Hague  Tribunal.  The  Supreme  Court  of  the  United 
States,  which  is  the  nearest  approach  to  that  Tribunal,  had  to 
wait  a  longer  time  after  its  creation  before  it  heard  its  first  case. 
The  Pious  Fund  claim  was  one  which  had  vexed  the  governments 
of  the  United  States  and  Mexico  for  nearly  half  a  century,  and 
had  baffled  the  efforts  of  well-disposed  diplomacy.  Having 
faith  in  the  efficacy  of  the  Tribunal,  and  obedient  to  the  spirit 
of  the  Arbitration  Convention  of  which  they  were  signatory 
parties,  they  entered  into  an  agreement  to  submit  the  claim  to 
that  Tribunal.  The  case  was  heard  under  satisfactory  condi- 
tions, a  decision  rendered  which  has  been  accepted  by  both 
parties,  and  that  source  of  difference  between  the  neighboring 
republics  has  been  forever  removed. 

But,  said  the  skeptics,  the  case  of  Mexico  was  one  involving 
merely  a  money  claim;  the  test  will  come  when  nations  heated 
to  the  point  of  war  are  called  upon  to  yield  their  pretentions 
to  the  decision  of  The  Hague  Court.  But  such  a  case  was  not 
long  delayed.  Three  of  the  most  powerful  nations  of  Europe 
were  soon  engaged  in  flagrant  hostilities  against  a  weak  Amer- 
ican state.  Venezuela,  though  not  a  party  to  The  Hague  Con- 
vention, appealed  to  it  for  the  determination  of  the  question  at 
issue.  The  Aflied  Powers,  Great  Britain,  Germany,  and  Italy, 
in  disregard  of  that  convention,  turned  to  the  President  of  the 
United  States  and  asked  him  to  become  the  sole  arbiter  of  the 
controversy.  It  was  a  high  mark  of  confidence  in  the  American 
chief  magistrate,  and  very  flattering  to  him  personafly,  but  his 
sense  of  duty  to  the  world  was  greater  than  his  pride  of  person, 
and  he  pointed  to  The  Hague  Tribunal  and  declined  the  offer. 
In  that  act  President  Roosevelt  rendered  a  greater  service  to  the 
cause  of  peace  and  international  arbitration  than  any  other  man 


MR.    FOSTER'S    PAPER 


53 


of  his  generation.  The  motive  which  animated  his  conduct  is 
well  stated  in  his  annual  message  of  1903  to  the  Congress  of 
the  United  States: 

**It  seemed  to  me  to  offer  an  admirable  opportunity  to  advance  the 
practice  of  the  peaceful  settlement  of  disputes  between  nations,  and 
to  secure  for  The  Hague  Tribunal  a  memorable  increase  of  its  prac- 
tical importance.  The  nations  interested  in  the  controversy  were 
so  numerous,  and  in  many  instances  so  powerful,  as  to  make  it 
evident  that  beneficent  results  would  follow  from  their  appear- 
ance at  the  same  time  before  the  bar  of  that  august  tribunal  of 
peace." 

The  action  of  President  Roosevelt  led  to  the  appearance  at 
The  Hague  of  a  distinguished  array  of  nations.  Russia  and 
Austria  were  represented  in  the  Court,  while  Venezuela,  Great 
Britain,  Germany,  Italy,  France,  Spain,  Belgium,  the  Nether- 
lands, Sweden  and  Norway,  the  United  States,  and  Mexico 
appeared  as  interested  parties. 

The  decision  of  the  Court  conceding  preferential  treatment 
to  the  Allied  Powers  who  sought  to  enforce  by  war  their  claims 
against  Venezuela  has  been  severely  criticised,  but  the  general 
results  are  recognized  as  of  great  value.  Mr.  MacVeagh,  of 
the  American  counsel,  while  questioning  the  soundness  of  the 
decision,  has  said: 

"There  can,  however,  be  no  manner  of  doubt  that  the  arbitrators 
acted  according  to  the  best  light  they  had,  nor  can  there  be  any 
doubt  that  the  presence,  for  the  first  time,  of  so  many  great  nations  at 
the  bar  of  the  Tribunal  outweighs  in  usefulness  any  adverse  result 
of  the  decision  itself." 

It  appears  the  Court  based  their  decision  upon  the  finding 
that  Venezuela  promised  the  allies  that  if  they  would  cease 
their  hostile  operations,  they  should  have  a  priority  of  claim 
upon  the  customs  receipts,  and  it  did  not  pass  upon  the  ethical 
question  urged  by  the  interested  peaceful  powers.  Hon.  J.  M. 
Dickinson,  whose  views  are  of  special  value  because  of  his 
experience  as  senior  counsel  at  London  before  the  Alaskan 
Boundary  Commission  and  his  active  practice  in  the  highest 
courts  of  the  United  States,  in  discussing  this  matter,  has  said: 


34       CONGRESS   OF   LAWYERS  AND   JURISTS 


"But  if  the  decision  were  wrong,  this  furnishes  no  just  ground  for 
saying  that  the  future  usefulness  of  the  Court  is  impaired.  No  one 
ever  expected  infalhbility  from  any  human  court,  and  we  do  not 
think  of  aboHshing  our  courts  because  they  err,  as  all  of  them  at 
times  do. 

"Under  the  corrective  influence  of  international  jurists,  unsound 
doctrine  will  be  repudiated.  This  is  more  easy  of  accompHshment 
by  The  Hague  Court  than  by  any  other.  The  same  members  are 
rarely  chosen  to  sit  again.  There  will  be  a  constant  change  in  judges. 
As  new  cases  arise,  not  having  any  pride  of  opinion  in  the  decision 
of  others,  they  will  the  more  promptly  expound  as  the  law  that  which 
the  enlightenment  of  the  time  shall  demand,  for  international  law 
will  always  develop  and  stand  as  the  exponent  of  such  international 
justice  and  morality  as  the  consensus  of  nations  shall  approve." 

The  importance  of  the  Venezuela  case  at  The  Hague  can 
scarcely  be  exaggerated.  The  thirteen  nations  there  repre- 
sented, embracing  a  population  of  more  than  four  hundred  and 
fift)  millions,  the  most  enlightened  as  well  as  the  most  powerful 
of  the  world  in  military  establishment,  are  a  striking  object 
lesson  of  the  wisdom  and  efficacy  of  arbitration.  President 
Roosevelt  has  anticipated  those  results  in  such  happy  language 
that  I  quote  again  from  his  message  to  Congress: 

"Such  an  imposing  concourse  of  nations  presenting  their  argu- 
ments to,  and  invoking  the  decision  of,  that  high  court  of  interna- 
tional justice  and  international  peace,  can  hardly  fail  to  secure  a  like 
submission  of  many  future  controversies.  The  nations  appearing 
there  will  find  it  far  easier  to  appear  there  a  second  time,  while  no 
nation  can  imagine  its  just  pride  will  be  lessened  by  following  the 
example  now  presented.  This  triumph  of  the  principle  of  interna- 
tional arbitration  is  a  subject  of  warm  congratulation,  and  offers  a 
happy  augury  for  the  peace  of  the  world." 

The  President's  anticipation  is  being  realized,  as  three  of 
the  powers  represented  in  the  Venezuela  Arbitration — Great 
Britain,  France,  and  Germany — have  united  in  an  agreement 
with  Japan,  a  signatory  party  to  The  Hague  Convention,  to 
submit  to  the  Permanent  Arbitration  Court  a  controversy 
between  them  which  has  not  yielded  to  diplomatic  negotiation; 
and  the  case  is  now  in  process  of  submission.  Other  nations 
will,  with  greater  frequency,  carry  their  differences  to  The 
Hague;    and  the  Temple,  for  the  construction  of  which  the 


MR.    FOSTER'S    PAPER  35 

generous  American  citizen  Mr.  Carnegie  has  provided  the 
means,  bids  fair  to  be  thronged  with  suitors  appealing  to  reason 
and  international  justice  for  the  protection  of  their  national 
rights. 

The  only  dark  cloud  which  obscures  the  otherwise  brilliant 
prospect  is  the  gigantic  and  terrible  conflict  now  going  on 
between  Russia  and  Japan,  and  the  sad  fact  that  although  they 
were  both  signatories  of  The  Hague  Convention,  that  agreement 
was  not  efficacious  for  the  preservation  of  peace.  The  conven- 
tion contains  an  article  which  makes  it  the  duty  of  the  signatory 
powers,  "in  case  a  serious  dispute  threatens  to  break  out  between 
two  or  more  of  them,  to  remind  these  latter  that  the  Permanent 
Court  of  Arbitration  is  open  to  them,"  and  that  "the  advice 
given  to  them,  in  the  highest  interest  of  peace,  to  have  recourse 
to  the  Permanent  Court,  can  only  be  considered  as  an  exercise 
of  good  offices,  "  and  not  as  an  offensive  act.  Although  France 
and  England,  two  of  the  most  influential  powers  in  the  creation 
of  The  Hague  Court,  were  connected  with  the  belligerents  by 
more  than  friendly  ties,  yet  neither  of  them,  nor  any  other  of  the 
powers  so  deeply  interested  in  the  peace  of  the  Orient,  dis- 
charged their  duty  under  Article  27  of  the  convention  and 
reminded  them  that  The  Hague  Court  was  open  for  the  settle- 
ment of  their  controversy. 

This  is  a  discouraging  fact,  but  only  emphasizes  the  position 
to  which  I  have  already  referred,  that  there  are  some  questions 
of  policy  and  high  politics  which,  in  the  present  temper  of  the 
nations,  cannot  be  adjusted  by  peaceful  methods.  Let  us  hope 
that  even  yet  the  contending  nations,  which  are  sacrificing  tens 
of  thousands  of  lives  and  squandering  their  resources  in  the 
unreasoning  conflict  of  arms,  may  awake  to  their  duty  under 
The  Hague  Convention,  and  leave  to  the  Permanent  Arbitration 
Court  the  final  adjustment  of  their  differences. 

The  practical  working  of  the  provisions  of  The  Hague 
Convention,  as  shown  in  the  two  cases  which  have  been  already 
dispatched  by  the  Court,  have  given  rise  to  various  suggestions 
for  some  modification  of  or  addition  to  these  provisions.     Hon. 


36       CONGRESS   OF   LAWYERS  AND   JURISTS 

W.  L.  Penfield,  Solicitor  of  the  United  States  Department  of 
State,  who  was  of  counsel  for  the  United  States  in  the  hearing 
of  both  the  Pious  Fund  and  Venezuela  cases,  has  made  some 
valuable  suggestions  in  that  direction,  as  well  as  other  experi- 
enced jurists.     I  have  space  to  notice  these  only  very  briefly. 

The  convention  provided  that  the  conditions  under  which 
powers  not  represented  in  the  Conference  might  become  ad- 
herents to  it  should  be  determined  hereafter  by  the  powers 
which  had  already  signed  it.  No  action  has  yet  been  taken  in 
that  direction.  For  this  reason  all  the  American  republics, 
except  the  United  States  and  Mexico,  have  no  representation  in 
The  Hague  Court,  and  the  result  is  that  it  is  practically  a  Euro- 
pean Tribunal.  When  these  two  last  mentioned  nations  came 
to  select  the  judges  to  try  the  Pious  Fund  case,  they  were  forced 
either  to  select  judges  from  among  their  own  citizens  or  to  choose 
from  European  or  Oriental  nationahties.  It  is  a  serious  defect 
in  the  organization  of  that  Court  that  these  numerous  American 
republics  should  be  excluded  from  furnishing  their  quota  for 
the  permanent  panel.  The  Conference  contemplated  the  desir- 
ability of  calling  another  similar  conference  at  no  distant  day. 
Should  such  further  conference  be  held,  it  would  doubtless 
heal  this  defect  in  the  existing  convention. 

There  is  nothing  in  the  convention  which  prevents  one  of 
the  litigants  from  selecting  as  a  judge  to  hear  his  case  one  of  the 
members  named  by  it  for  the  permanent  panel.  It  has  been 
a  much  disputed  question  whether  an  interested  party  should 
be  represented  on  the  Court  by  a  judge  of  its  own  nationality. 
In  the  two  cases  thus  far  heard  by  the  Court  the  judges  were 
taken  from  non-interested  countries,  and  the  weight  of  opinion 
seems  to  be  in  that  direction. 

The  propriety  of  a  member  of  the  permanent  panel  of  the 
Court  appearing  as  counsel  for  a  litigating  party  has  been 
seriously  questioned.  Two  of  its  members  appeared  as  opposing 
counsel  in  the  Pious  Fund  case,  and  other  members  appeared 
in  like  capacity  in  the  Venezuela  case.  In  the  latter  instance 
protests  against  the  practice  were  filed  in  the  Court  by  both 


MR.    FOSTER'S   PAPER  37 


Venezuela  and  Great  Britain.  This  subject  was  fully  discussed 
in  the  Conference,  and  an  effort  was  made  to  place  in  the  con- 
vention a  prohibition  against  the  practice;  but  while  the  general 
sentiment  was  against  the  assumption  of  the  functions  of  counsel 
by  a  member  of  the  Court,  it  was  deemed  best  to  take  no  definite 
action,  trusting  that  the  good  sense  and  propriety  of  the  mem- 
bers of  the  Court  would  finally  evolve  a  rule  which  would  safe- 
guard the  reputation  of  the  bench.  The  experience  in  the 
two  cases  heard  seems  to  call  for  a  prohibitive  rule  on  the  subject. 

Attention  has  been  directed  to  the  fact  that  the  organization 
of  the  Court  is  a  loose  one.  The  persons  are  named  by  the 
respective  governments  and  they  are  enrolled  as  members  of  the 
Court,  but  as  has  been  seen,  they  may  never  be  called  upon  to 
serve  as  judges,  and  yet  their  acceptance  of  the  appointment 
implies  a  readiness  to  serve  whenever  chosen;  but  no  provision 
is  made  for  compensation  except  when  the  judges  are  actually 
called  to  duty.  As  the  members  are  expected  to  serve  whenever 
invited,  without  regard  to  the  importance  of  the  case,  it  has 
been  suggested  that  some  arrangement  should  be  made  to  pay 
them  a  reasonable  retainer.  When  this  matter  was  before  the 
Conference,  it  was  considered  the  province  of  each  government 
to  determine  the  subject  with  its  own  appointees. 

An  argument  used  against  a  resort  to  The  Hague  Court  is  the 
matter  of  expense.  In  the  Pious  Fund  case  the  five  judges 
were  paid  five  thousand  dollars  each.  To  this  expense  was 
added  that  for  counsel,  a  staff  of  clerks,  French  and  English 
stenographers,  and  printing  the  evidence  and  arguments.  The 
objection  might  not  be  weighty  with  the  great  nations,  but  the 
expense  would  press  heavily  against  the  smaller  states  with 
limited  resources.  It  is  a  matter  which  should  commend  itself 
to  the  consideration  of  the  great  powers. 

The  language  to  be  used  in  the  proceedings  and  records  of 
the  Court  has  been  wisely  left  by  the  convention  to  be  fixed  by 
the  parties  resorting  to  the  Tribunal.  The  experience  of  the 
Court  has  shown  that  it  is  of  much  importance  that  in  the 
special  agreement  of  arbitration  in  each  case  the  language  to 


385141 


38       CONGRESS   OF   LAWYERS  AND   JURISTS 

be  used  should  be  explicitly  fixed.  French  is  the  prevailing 
tongue  used  in  the  international  assemblies  in  Europe  and  in 
diplomacy,  but  its  compulsory  use  would,  in  many  cases,  work 
inconvenience,  and  sometimes  serious  hardship.  Its  enforce- 
ment in  The  Hague  Court  would  debar  the  great  majority  of 
American  lawyers,  and  would  discourage  the  resort  by  American 
states  to  the  Tribunal. 

In  the  Pious  Fund  case  the  minutes  of  the  proceeding  and 
the  award  were  in  French,  the  oral  language  of  the  Court  was 
English,  and  both  French  and  English  were  used  in  the  oral 
arguments;  the  Parisian  stenographer,  however,  confessed  his 
inability  to  accurately  report  some  of  the  arguments  spoken  in 
French  with  a  Spanish  accent.  In  the  Venezuela  case  it  was 
agreed  that  the  English  language  should  be  used  in  the  pro- 
ceedings, but  that  the  arguments  might  be  made  in  any  other 
language.  No  stipulation  was  made  that  the  judges  should  be 
familiar  with  the  EngHsh  language,  as  it  seemed  unnecessary, 
in  view  of  the  provision  as  to  the  language  of  the  proceedings; 
but  it  resulted  that  some  of  the  members  of  the  Court  were  not 
able  to  speak  Enghsh  fluently,  and  out  of  consideration  for  them 
it  was  agreed  that  the  language  used  orally  by  the  Court  should 
be  the  French. 

Notwithstanding  the  defects  which  have  been  developed  in 
the  condition  and  practice  of  The  Hague  Court,  some  of  which 
I  have  briefly  noted,  it  is  gratifying  to  see  that  it  has  proved 
so  well  adapted  to  the  exalted  purpose  for  which  it  was  created, 
and  that  its  imperfections,  which  are  not  serious,  may  be  easily 
cured. 

The  topic  assigned  me  is  not  limited  to  a  consideration  of 
the  settlement  of  international  controversies  by  The  Hague 
Tribunal,  but  it  contemplates  another  alternative  method  of 
settlement  by  special  commissions.  The  method  suggested 
may  be  either  by  the  creation  of  a  special  international  arbitra- 
tion tribunal,  composed  of  an  uneven  number  of  judges,  or, 
as  in  some  cases  in  the  past,  by  a  joint  commission  composed 
of  an  equal  number  of  citizens  or  subjects  of  the  interested 


MR.    FOSTER'S    PAPER  39 

parties.  The  special  arbitration  tribunal  would  involve  ques- 
tions so  similar  to  those  already  discussed  as  to  The  Hague  Court, 
that  I  deem  it  unnecessary  to  give  further  attention  to  it.  I 
therefore  invite  a  consideration  of  joint  commissions  of  the 
interested  nations. 

It  has  been  seen  that  there  are  a  class  of  controversies 
which  in  the  present  state  of  public  sentiment  it  does  not  seem 
possible  to  submit  to  arbitration.  The  Hague  Convention 
recognizes  only  two  classes  of  cases  as  within  its  purview — 
questions  of  a  judicial  character  and  regarding  the  interpreta- 
tion of  treaties;  and  the  Anglo-French  and  other  recent  con- 
ventions, in  seeking  to  make  arbitration  compulsory  in  these 
two  classes,  have  still  further  limited  its  scope  by  exempting 
such  of  those  questions  as  affect  the  vital  interests,  the  indepen- 
dence, and  the  honor  of  the  state.  Hence,  until  the  intelhgence 
and  conscience  of  mankind  is  awakened  to  demand  a  high  stan- 
dard of  international  justice,  there  are  a  large  number  of  ques- 
tions, especially  of  a  political  character,  which  remain  outside 
of  the  pale  of  arbitration. 

Is  it  not  possible  to  control  controversies  belonging  to  these 
classes  in  such  a  way  as  to  bring  about  an  adjustment  in 
aggravated  cases  by  some  other  method  than  the  arbitrament 
of  war?  The  Washington  Conference,  while  it  recommended 
unconditional  arbitration,  recognized  the  existence  of  the  sen- 
timent alluded  to;   and  it  further  recommended  that: 

"Governments  should  agree  not  to  resort,  in  any  case,  to  hostile 
measures  of  any  description  till  an  effort  had  been  made  to  settle  any 
matter  in  dispute  by  submitting  the  same  either  to  the  Permanent 
Court  at  The  Hague  or  to  a  commission,  composed  of  an  equal  num- 
ber of  persons  from  each  country,  of  recognized  competence  in  ques- 
tions of  international  law." 

Ex-President  Harrison,  in  his  argument  before  the  Venezuela 
Tribunal  at  Paris  in  1899,  referred  to  the  work  of  The  Hague 
Conference,  then  in  session,  in  the  following  forcible  language : 

"Mr.  President:  It  has  been  to  me  a  matter  of  special  interest  that 
the  President  of  this  Tribunal  (Professor  F.  de  Martebs),  after  his 


40       CONGRESS   OF  LAWYERS  AND   JURISTS 

designation  by  these  two  contending  nations  for  that  high  place, 
which  assigned  to  him  the  duty  of  participating  in  practical  arbitra- 
tion between  nations,  was  called  by  his  great  sovereign  to  take  part 
in  a  conference  which,  I  believe,  will  be  counted  to  be  one  of  the  great- 
est assemblies  of  the  nations  that  the  world  has  yet  seen,  not  only  in 
the  personnel  of  those  who  are  gathered  together,  but  in  the  wide 
and  widening  effect  which  its  resolutions  are  to  have  upon  the  inter- 
course between  nations  in  the  centuries  to  come.  There  was  nothing, 
Mr.  President,  in  your  proceedings  at  The  Hague  that  so  much 
attracted  my  attention  and  interest  as  the  proposition  to  constitute 
a  permanent  court  of  arbitration.  It  seems  to  me  that  if  this  pro- 
cess of  settUng  international  differences  is  to  commend  itself  to  the 
nations,  it  can  only  hope  to  set  up  for  the  trial  of  such  questions  an 
absolutely  impartial  judicial  tribunal.  If  conventions,  if  accommo- 
dations, and  if  the  rule  of  'give  and  take'  are  to  be  used,  then  let  the 
diplomatists  settle  the  question;  but  when  they  have  failed  in  their 
work,  and  the  question  between  two  great  nations  is  submitted  for 
judgment,  it  seems  to  me  necessarily  to  imply  the  introduction  of  a 
judicial  element  into  the  controversy." 

President  Harrison  was  addressing  his  remarks  to  a  tribunal 
which  he  was  seeking  to  impress  with  the  judicial  character  of 
the  question  before  it,  but  which  failed  to  take  that  view  of 
it  in  their  decision,  and  did  just  what  he  said  a  judicial  tribunal 
should  not  do — compromise  the  conflicting  territorial  claims  of 
the  litigants.  The  case  he  had  in  hand  illustrates  the  fact  that 
arbitration  tribunals  often  have  to  reach  a  mean  course  between 
the  contending  claims  submitted  to  them.  But  with  the  instincts 
of  a  highly  trained  judicial  mind,  with  the  ardent  devotion  which 
many  who  hear  me  know  he  had  for  his  profession,  the  American 
lawyer  in  Paris  pleaded  with  good  reason  for  a  high  ideal  for 
the  Tribunal  about  to  be  created  at  The  Hague.  It  may  not 
always  be  realized  there,  but  it  is  possible  in  such  commissions 
as  seem  to  be  contemplated  by  the  Washington  resolution  just 
quoted. 

Disputes  often  arise  between  nations  which  they  are  not 
willing  to  hazard  by  the  award  of  foreign  judges,  and  about 
which,  with  the  most  friendly  intentions,  they  cannot  agree. 
The  controversy  may  involve  questions  of  law,  or  mixed  ques- 
tions of  law  and  fact.  It  is  often  quite  possible  to  reach  a  solu- 
tion by  reference  to  a  commission  of  impartial  jurists  composed 


MR.    FOSTER'S    PAPER  41 

of  an  equal  number  from  both  countries.  The  Alaskan  boundary 
dispute  is  a  happy  illustration  of  this. 

The  Alaskan  boundary  had  become  an  irritating  controversy 
which  threatened  the  peace  of  the  two  countries.  Great  Britain 
was  willing  to  submit  the  question  to  arbitration,  but  in  view 
of  the  fact  that  the  United  States  had  had  uninterrupted  pos- 
session of  the  territory  in  dispute  for  many  years,  the  public 
sentiment  of  the  country  would  not  permit  its  rulers  to  accept 
the  British  proposition.  After  much  discussion  it  was  agreed 
that  the  questions  involved  should  be  submitted  to  a  commission 
of  six  jurists,  three  citizens  or  subjects  each  from  the  two 
countries.  The  commission  met  in  London  to  examine  the 
evidence  and  hear  argument  of  counsel.  It  was  conceded 
that  all  questions  turned  upon  the  interpretation  of  a  treaty,  a 
duty  eminently  suited  to  the  determination  of  jurists.  A  decis- 
ion on  all  the  questions  was  made,  and  in  accordance  with 
that  decision  the  two  governments  have  directed  their  survey 
officials  to  lay  off  and  mark  the  boundary.  A  dispute  which 
could  not  go  to  arbitration  was  thus  adjusted  by  a  judicial  com- 
mission. Such  a  procedure  will  commend  itself  especially  to 
lawyers,  whose  province  it  is  to  aid  in  the  settlement  of  contro- 
versies by  law  and  reason,  and  not  by  force. 

Special  commissions  for  the  consideration  of  matters  which 
cannot  secure  a  reference  to  arbitration  may  serve  other  useful 
purposes.  The  finding  of  a  body  of  jurists,  who  look  dispas- 
sionately and  judicially  at  the  question  unembarrassed  by  policy 
or  politics,  may  so  elucidate  the  law  and  the  facts  as  to  enable 
the  disputing  governments  to  reach  a  basis  of  settlement  which 
had  not  been  possible  through  diplomacy. 

They  also  serve  the  important  purpose  of  securing  delay  at 
a  time  when  the  passions  of  both  the  disputant  nations  are 
wrought  up  to  a  high  pitch  of  excitement  and  patriotism.  Most 
wars  may  be  avoided,  if  time  is  afforded  to  treat  the  subject  of 
dispute  with  calmness  and  sober  reason.  It  should  be  the  aim 
of  the  advocates  of  arbitration  to  secure  an  amendment  or 
addition   to   the   compulsory  treaties   recently  made   between 


42       CONGRESS   OF   LAWYERS   AND   JURISTS 

various  of  the  European  powers,  similar  to  the  provision  recom- 
mended by  the  Washington  Conference,  pledging  the  contracting 
parties,  where  arbitration  is  unattainable,  not  to  resort  in  any 
case  to  hostilities  till  an  effort  had  been  made  to  settle  the 
matter  in  dispute  by  a  commission  of  jurists  of  the  nationalities 
of  the  parties.  Such  a  stipulation  will  go  far  to  preserve  the 
peace  of  the  world. 

Some  of  the  friends  of  universal  peace,  while  commending 
the  spirit  of  The  Hague  Conference,  assert  that  its  Permanent 
Court  is  hopelessly  inadequate,  that  arbitration  treaties  between 
nations  such  as  that  between  France  and  England  will  not 
prevent  war,  and  that  the  effective  remedy  is  a  world's  parlia- 
ment of  nations,  clothed  with  a  mandate  to  preserve  peace  and 
to  compel  disputing  nations  to  submit  their  grievances  and 
claims  to  arbitration  or  the  judgment  of  the  parhament. 

Are  the  promises  held  out  by  The  Hague  Court  illusory? 
Is  it  destined  to  receive  the  condemnation  of  the  nations  or  to 
die  of  neglect  and  non-use?  I  hope  not.  I  think  not.  The 
delegates  to  that  great  assembly  were  practical  men.  They 
did  not  even  condemn  war  as  wholly  unrighteous.  They  did 
not  attempt  the  impossible.  They  recognized  their  work  as 
imperfect,  but  it  was  the  best  then  attainable.  I  have  pointed 
out  some  of  the  defects  of  the  Arbitration  Convention,  and  have 
suggested  amendments  which  are  possible  of  attainment  at  no 
distant  day.  I  think  it  should  be  the  policy  of  the  friends  of 
universal  peace  to  labor  to  perfect  that  instrument  and  to  make 
The  Hague  Court  popular  with  the  nations  as  an  effective  means 
of  adjusting  international  differences. 

A  permanent  world's  parliament  of  states  is  a  long  way  off, 
and  while  it  is  a  worthy  ideal,  its  advocates  should  not  decry 
The  Hague  Court,  or  do  anything  to  lessen  the  confidence  of 
the  nations  in  its  utility.  The  Conference,  as  has  already  been 
noted,  contemplated  a  similar  assembly  in  the  near  future  to 
amend  the  arbitration  convention  and  to  consider  the  exemption 
of  private  property  on  the  high  sea  in  time  of  war,  a  measure 
urged  upon  that  body  by  the  delegates  from  the  United  States. 


MR.    FOSTER'S    PAPER  43 

Other  matters  of  international  moment  are  pressing  for  settle- 
ment. The  Interparhamentaiy  Union  at  its  recent  session  in 
this  city  passed  a  resolution  asking  the  President  of  the  United 
States  to  call  a  second  conference  at  The  Hague.  This  resolu- 
tion was  presented  to  the  President  a  few  days  ago,  and  it  is 
very  gratifying  to  note  that  he  has  announced  his  intention  to 
issue,  at  an  early  day,  an  invitation  to  the  nations  to  join  in 
such  a  conference.  It  is  to  be  anticipated  that  a  favorable 
response  will  be  made,  and  when  that  event  takes  place  it 
behooves  the  friends  of  arbitration  to  influence  their  respective 
governments  throughout  the  world  to  make  still  more  effective 
The  Hague  Court. 

It  is  the  comment  of  those  who  have  studied  the  delibera- 
tions of  the  last  Conference,  and  the  action  of  the  nations  on  the 
subject  of  arbitration,  that  the  governments  have  been  in 
advance  of  the  pubhc  sentiment  on  the  subject.  The  unthink- 
ing mass  of  mankind  are  fond  of  military  display,  and  take  a 
deep  interest  in  the  conflict  of  armies.  The  patriotic  spirit 
rejoices  in  the  achievement  of  the  military  heroes  and  the 
triumphs  of  its  country  in  the  field  of  arms.  Said  a  Senator  of 
the  United  States,  an  accomplished  statesman  and  an  able  law- 
yer, to  me  recently,  "There  is  no  popular  demand  in  this  countr}^ 
for  these  arbitration  treaties;  the  sentiment  on  the  subject  is 
mainly  manufactured." 

I  will  not  detain  you,  at  the  stage  when  my  address  should 
close,  to  refute  his  assertion.  But  it  challenges  the  friends  of 
peace  among  the  nations  to  manifest  their  devotion  to  the 
cause.  No  class  of  society  can  do  more  to  bring  about  a  sound 
public  sentiment  in  favor  of  international  arbitration  than  the 
lawyers.  In  this  connection  let  me  again  cite  the  action  of 
the  New  York  State  Bar  Association.  After  full  discussion  of 
the  subject,  and  its  careful  study  by  a  committee  of  its  most 
prominent  members,  a  plan  for  a  permanent  international 
arbitration  court  was  drawn  up,  and  a  committee  of  that  body 
made  the  journey  to  Washington  to  lay  it  before  the  President 
and  ask  for  it  the  careful  attention  of  the  government.     That 


44       CONGRESS   OF  LAWYERS   AND   JURISTS 

plan  became  the  basis  of  the  instructions  of  the  American 
delegates  to  The  Hague  Conference,  and  the  essential  features 
of  the  Permanent  Court  now  in  existence  at  The  Hague  are  in 
accordance  with  that  plan. 

Notwithstanding  the  fierce  conflict  that  is  raging  in  the 
Far  East,  there  is  a  cheerful  outlook  for  international  arbitration. 
Neither  should  the  august  initiator  of  The  Hague  Conference 
be  too  severely  censured  for  inconsistency.  Unconditional 
arbitration  was  not  contemplated  by  him,  and  many  a  humane 
ruler  before  his  day  has  been  unwillingly  involved  in  hostilities. 
Instances  of  the  avoidance  of  war  are  increasing  in  our  time. 
The  normal  condition  of  the  world  now  is  peace,  and  for  that 
the  rulers  of  the  nations  constantly  strive.  The  recent  treaty 
between  Great  Britain  and  France,  adjusting  all  outstanding 
matters  of  diflferences  between  these  two  ancient  and  once 
inveterate  enemies,  is  a  hopeful  augury  for  the  future  conduct 
of  states.  A  notable  example  of  the  spirit  of  this  latter  day  is 
the  action  of  the  two  most  southern  republics  of  this  hemisphere, 
in  uniting  in  a  treaty  of  peace  and  unconditional  arbitration, 
whereby  their  armies  are  disbanded,  and  their  navies  reduced  by 
the  sale  of  a  number  of  their  battleships  and  the  transformation  of 
cruisers  into  vessels  of  commerce.  To  crown  this  noble  work 
Argentina  and  Chile  have  done  well  to  erect  on  the  highest  peak 
of  the  Andes,  which  marks  their  international  boundary,  long  a 
subject  of  angry  controversy,  a  statue  of  the  Christ,  the  Prince 
of  Peace. 

A  fresh  propaganda  for  arbitration  has  opened  in  Europe, 
in  which  the  statesmen  and  jurists  of  France  take  the  lead. 
King  Edward  VH  is  exerting  his  mighty  influence  among  the 
Great  Powers  in  the  same  direction.  The  President  of  the 
United  States  on  all  proper  occasions  raises  his  voice  and  shapes 
the  conduct  of  his  government  in  favor  of  international  arbitra- 
tion. We  know  too  sadly  by  the  daily  intelligence  from  the 
East  that  universal  peace  has  not  yet  come,  but  we  may  fondly 
hope  that  the  era  of  Alexander,  CiESAR,  and  Napoleon  has 
passed,  never  to  return;    that  the  ambition  of  rulers  and  the 


SENOR   VELASCO  45 

rivalry  of  nations  may  henceforth  He  in  the  paths  of  education, 
industry  and  commerce;  and  that  The  Hague  Court  will  long 
stand  as  a  beacon  light  in  the  tempestuous  sea  of  international 
politics,  and  its  influence  and  efficiency  grow  with  the  advancing 
years.    [Applause.] 

The  President: 

We  are  now  to  hsten  to  a  discussion  of  this  paper  by  Sefior 
Don  Emilio  Velasco  of  Mexico. 

Sefior  Don  Emilio  Velasco,  a  Delegate  of  the  Mexican 
Government,  spoke  as  follows: 

Mr.  President  and  Gentlemen  of  the  Congress  of  Lawyers 
and  Jurists :  Not  many  days  ago  the  Peace  Congress  advocated, 
among  its  aspirations,  the  negotiation  of  treaties  of  arbitration. 
To-day  this  Congress  meets,  and  one  of  the  points  of  its  pro- 
gramme is  international  arbitration.  And  this  is  not  the 
result  of  isolated  opinions  and  voices;  the  question  of  arbitra- 
tion between  nations  to  adjust  their  controversies  is  a  question 
in  which  all  civilized  peoples  take  an  interest,  and  which  pre- 
occupies publicists  and  statesmen;  it  is  a  problem  which  pre- 
sents itself  to  governments,  and  for  which  they  are  seeking  a 
solution. 

International  arbitration,  with  its  present  characteristics, 
is  a  social  phenomenon,  a  product  of  the  progressive  movement 
of  humanity.  History,  in  its  several  epochs,  presents  us  exam- 
ples of  arbitration;  but  in  none  up  to  this  time  has  arbitration 
assumed  the  nature  of  a  system  directed  to  putting  an  end  to 
international  wars,  substituting  armed  contests  with  pacific 
discussions,  and  the  rule  of  force  with  the  reign  of  law. 

The  idea  of  international  arbitration  is  not  the  creation  of 
one  man  nor  of  any  set  of  men,  however  eminent  they  may  be; 
it,  like  all  other  forms  of  right,  corresponds  to  a  certain  moral 
state  in  civil  societies;  when  there  is  among  these  a  sentiment, 
aspirations,  which  they  cannot  define,  then  there  appear  men 
of  science  who  give  a  form  to  these  aspirations  and  to  that 


46       CONGRESS   OF   LAWYERS  AND   JURISTS 

sentiment;  and  in  this  way  that  sentiment,  which  before  beat 
in  the  heart  of  the  societies,  has  its  external  manifestations  and 
produces  powerful  currents  of  opinion.  This  has  come  about 
in  respect  to  international  arbitration. 

Before  the  bloody  spectacle  of  war,  humanity  recoils  shud- 
dering with  horror,  and  has  asked  if  there  be  not  some  means  of 
averting  these  frightful  catastrophes.  Science  has  responded, 
presenting  arbitration  as  a  practical  means  of  settling  inter- 
national difficulties. 

Material  interests  have  united  together  to  lend  their  sup- 
port to  the  proposed  solution;  these  interests,  which  with  their 
innumerable  ramifications  have  created  a  material  solidarity 
between  all  civilized  peoples,  and  which  so  greatly  feel  the  conse- 
quences of  great  wars,  tend  to  favor  the  solution  of  international 
questions  by  pacific  means. 

In  proportion  that  the  masses  of  each  country  possess  them- 
selves with  the  political  power  and  make  their  influence  felt  in 
the  councils  of  the  government,  the  possibility  of  armed  con- 
flicts is  more  remote.  A  war  affects  all  social  classes,  and  is  a 
menace  to  the  fortunes  of  all;  in  countries  where  the  masses 
of  the  people  exercise  the  political  power  through  their  repre- 
sentatives, it  will  be  difficult  to  bring  about  a  war  which  should 
not  have  a  national  interest  and  a  national  object,  a  war  whose 
sacrifices  should  not  be  equal  to  the  importance  of  the  interests 
involved.  In  such  countries,  therefore,  arbitration  offers  itself  as 
a  means  of  ending  difficulties  which  may  arise  with  other  nations. 

For  governments,  whether  weak  or  strong,  international 
arbitration  is  a  great  recourse.  For  the  weak  governments, 
arbitration  saves  them  from  a  terrible  dilemma,  from  humiliation 
and  from  ruin ;  from  the  humiliation  of  submitting  to  demands 
which  they  consider  as  an  abuse  of  power,  and  from  a  war  which 
for  them  would  be  a  disaster,  if  they  are  not  willing  to  submit 
to  that  humiliation.  Arbitration,  although  the  final  result  may 
be  unfavorable  to  the  weak  governments,  will  have  saved  the 
moral  interests  which  they  represent,  the  national  self-respect 
and  decorum. 


SENOR    VELASCO  47 

For  the  strong  governments,  when  modern  war,  with  the 
powerful  elements  at  its  disposal,  causes  destruction  which  may 
bring  a  nation  to  the  very  brink  of  an  abyss,  and  which  in  any 
event  affects  in  its  consequences  coming  generations,  it  is  an 
immense  responsibility  to  plunge  the  nations  which  they  govern 
into  a  war,  when  there  is  no  sufficient  cause  to  explain  and 
justify  the  war. 

Thus,  the  moral  interests  of  humanity — interests  represented 
by  the  men  of  science  and  by  the  great  associations  which  aspire 
to  put  an  end  to  armed  conflicts — the  material  interests  of  the 
civilized  nations,  the  political  power  in  those  peoples  who 
through  their  representatives  influence  the  direction  of  public 
affairs,  and  the  interests  of  the  governments,  are  the  elements 
under  which  has  developed  and  waxed  in  vigor  a  system  which 
tends  to  put  an  end  to  international  controversies  by  means  of 
arbitration;  they  are  the  elements  which  in  the  future  will 
develop  that  system  until  it  reaches  perfection,  so  far  as  per- 
fection is  possible  to  human  works. 

International  arbitration  has  at  the  present  time  three  forms: 
(i)  arbitration  in  its  nature  transitory  and  for  determined  mat- 
ters; (2)  compromissorial  clauses  inserted  in  treaties  to  decide 
the  questions  which  the  interpretation  and  execution  of  the 
treaty  may  give  rise  to;  (3)  permanent  and  obligatory  arbitra- 
tion. 

Treaties  of  arbitration,  in  these  three  forms,  have  increased 
in  number  progressively,  very  especially  in  the  first  two  forms. 
This  increase  is  a  fact  of  great  importance,  for  it  indicates  that 
the  idea  and  the  practice  of  arbitration  have  been  acclimating 
themselves  in  modern  societies  and  are  entering  as  a  normal 
fact  into  international  relations. 

The  last  form,  that  of  permanent  and  obligatory  arbitration, 
is  that  which  offers  most  resistance,  and  various  of  the  attempts 
which  have  been  made  to  establish  it  have  proven  failures. 
While  the  arbitration  is  accepted  in  principle,  and  with  the 
purpose  to  apply  it  to  the  differences  which  may  arise,  a  senti- 
ment of  mistrust  and  the  fear  of  contracting  obligations  which 


48       CONGRESS   OF   LAWYERS  AND   JURISTS 

restrict  the  liberty  of  action,  restrain  the  governments  from 
accepting  arbitration  as  an  obhgatory  rule  to  which  they  must 
conform  themselves  in  the  international  differences  which  may 
arise;  they  fear  that  to  accept  a  general  obligation  for  the 
future,  instead  of  limiting  themselves  to  concrete  cases  when 
they  have  arisen,  is  to  accept  the  unknown,  is  to  submit  them- 
selves to  a  situation  in  which  the  national  interests  may  be 
endangered. 

The  questions  which  may  be  the  subject-matter  of  arbitra- 
tion have  also  offered  difficulties,  several  of  which  have  not  been 
solved.  The  practice  of  the  generality  of  the  nations  leads  us  to 
believe  that  questions  involving  material  interests  offer  no 
objections  to  being  submitted  to  arbitration;  and  in  reality, 
international  arbitration  for  that  kind  of  questions  has  acquired, 
and  continues  to  acquire,  considerable  development.  In  this 
way  disputes  about  boundaries,  indemnities,  fisheries,  and 
others  analogous,  have  been  decided  by  international  arbitra- 
tion; and  to-day  it  seems  strange  that  in  questions  involving 
only  material  interests  recourse  should  be  had  to  force  to  decide 
them,  instead  of  asking  their  decision  by  an  arbitral  tribunal. 
The  idea  which  occurs  in  such  cases  is,  that  behind  the  material 
interest  is  hidden  some  other  class  of  desires  and  of  aspirations. 

But  besides  these  questions  there  are  others  in  which  material 
interests  are  not  involved,  but  interests  of  a  moral  order,  inter- 
ests which  in  the  generality  of  cases  are  not  susceptible  of  being 
judged  by  juridical  rules;  and  in  which,  although  treating  of 
questions  to  which  one  of  those  rules  might  be  applied,  the 
juridical  character  does  not  predominate,  but  a  character  emi- 
nently political.  These  questions  are  comprised  in  the  category 
of  questions  relative  to  independence  and  national  honor; 
and  among  these  are  the  conflicts  between  nations  originating 
out  of  their  tendencies  to  extend  the  sphere  of  their  influence 
and  of  their  action.  In  respect  to  these  questions,  even  the 
governments  which  accept  the  principle  of  permanent  arbitra- 
tion exclude  them  from  arbitration,  and  few  instances  can  be 
cited   of   treaties   concluded    between   the   Hispano-American 


SENOR   VELASCO  49 


nations  in  which  arbitration  is  accepted  without  any  restric- 
tions. This  class  of  questions,  in  the  present  state  of  society, 
it  seems  should  be  rather  the  object  of  the  good  offices  and  of 
the  mediation  of  other  powers  than  of  arbitration. 

There  are  two  difficulties,  therefore,  which  beset  arbitration 
in  these  present  times;  the  resistance  on  the  part  of  some 
governments  to  permanent  arbitration,  and  the  difficulty  of 
giving  juridical  form  to  questions  of  a  poHtical  nature.  Arbi- 
tration has  won  for  itself,  in  science,  a  place  as  a  system  of 
solving  international  disputes,  and  in  practice,  it  has  also  a 
place  as  a  means  of  deciding  conflicts  in  which  material  interests 
are  involved ;  but  neither  is  that  system  accepted  by  all  nations, 
nor  are  those  conflicts  the  only  ones  which  divide  them. 

Is  there  hope  that  these  difficulties  can  be  overcome?  We 
must  trust  so;  the  practice  of  arbitration  will  httle  by  httle 
dispel  the  want  of  confidence,  and  will  prepare  the  minds  of  the 
governments  which  to-day  resist  permanent  arbitration,  per- 
suading them  that  there  is  nothing  in  it  which  should  inspire 
fear,  and  that,  on  the  contrary,  it  originates  a  normal  situation 
in  which  dangers  to  the  nations,  however  powerful  they  are 
supposed  to  be,  are  averted. 

The  second  point  is  more  difficult  to  resolve;  to  seek  a 
juridical  formula  for  questions  which  are  eminently  political 
seems  an  insoluble  problem.  It  certainly  is  so  at  the  present 
time;  but  arbitration,  under  the  impulse  of  the  immense  moral 
forces  which  support  it  and  put  it  into  action,  has  made  gigantic 
strides;  and  to-day  that  is  a  reahty  which  in  other  times  was 
an  illusion.  Perhaps  that  which  to-day  is  an  impossibihty  and 
the  dream  of  elevated  spirits  shall  be  a  truth  with  the  passing  of 
time;  perhaps  the  great  moral,  material,  and  political  interests 
which  have  raised  arbitration  to  the  place  which  it  to-day 
occupies,  will  raise  it  higher  yet,  to  the  point  where  all  inter- 
national conflicts  will  be  settled  by  it. 

In  this  progressive  movement  of  humanity,  which  leads  on 
to  the  reahzation  of  the  ideal  of  peace,  a  signal  place  is  held  by 
the  Tribunal  constituted  at  The  Hague.     The  estabUshment 


50        CONGRESS   OF  LAWYERS  AND   JURISTS 

of  this  Tribunal  marks  an  epoch  in  the  history  of  international 
law.  Nations  separated  by  rivalries,  by  interests,  by  historical 
antecedents,  sent  their  representatives  to  the  Conference  of 
The  Hague  that  they  might  discuss  the  means  adequate  to  the 
effect  of  mitigating  the  rigors  of  v^ar,  and  to  seek  pacific  solu- 
tions for  international  conflicts.  Of  this  Conference  was  born 
the  Arbitration  Treaty. 

This  treaty  is  a  timid  step  in  which  are  revealed  the  dis- 
trusts and  the  resistances  which  were  to  be  accommodated; 
but  that  step  is  of  transcendent  importance,  because  it  was  not 
the  result  of  the  isolated  action  of  some  governments,  but 
of  the  concert  of  the  most  powerful  nations  of  the  world; 
it  indicates  that  throughout  all  of  the  civihzed  world  is  felt  the 
necessity  of  seeking  in  the  law  the  solution  of  questions  which 
has  been  intrusted  to  the  hazards  of  war. 

It  is  a  first  step  which  opens  up  the  way  for  other  steps,  and 
gives  us  to  hope  for  the  future  greater  developments  in  the 
practice  of  arbitration.  The  Tribunal  of  The  Hague,  created 
by  the  collective  action  of  the  nations,  with  its  character  of 
permanency  and  with  rules  of  procedure  previously  defined, 
has  in  its  support  a  great  moral  force,  and  presents  all  the  advan- 
tages and  all  the  facilities  which  constituted  tribunals  offer.  It 
is  a  Tribunal  open  to  all  who  ask  its  judgment;  its  examples 
and  its  practices  will  be  an  inducement  to  all  the  nations  to 
intrust  to  it  their  differences. 

But  the  action  of  the  governments  is  the  most  efficacious 
means  for  the  development  of  international  arbitration;  the 
conscience  of  the  civilized  world  on  this  question  is  known  to 
all;  what  is  sought  to  do  is  to  carry  into  practice,  with  all  the 
development  of  which  they  may  be  susceptible,  the  ideas  which 
have  been  elaborating  in  the  thought  of  a  great  part  of  humanity. 
This  only  can  be  attained  through  the  co-operation  of  the  gov- 
ernments. 

The  First  Conference  of  The  Hague  foreshadowed  the  possi- 
bility of  a  Second  Conference.  The  moment  perhaps  does  not 
seem  to  have  arrived  for  the  holding  of  this  Second  Conference; 


SENOR   VELASCO  51 

the  Tribunal  of  The  Hague  has  not  yet  been  in  operation 
enough  for  it  to  have  acquired  all  the  authority  to  which  its 
elevated  functions  call  it,  and  which  should  stimulate  the  ampli- 
fication of  its  faculties.  Moreover,  the  moment  does  not  seem 
fit  for  the  discussion  of  the  manner  of  hmiting  wars  when  a 
great  war  is  devastating  a  part  of  the  civihzed  world. 

When  this  war  shall  have  terminated,  when  the  vestiges  of 
destruction  and  of  blood  which  it  shall  leave  behind  it  shall  be 
a  lesson  not  only  for  those  who  have  combatted,  but  for  all  the 
other  nations,  when  the  Tribunal  of  The  Hague  shall  have 
acquired  a  greater  authority,  then  will  be  the  moment  for  the 
reunion  of  a  second  conference. 

The  Peace  Congress  approved  a  resolution  inviting  the 
President  of  the  United  States  to  call  for  a  second  conference 
at  The  Hague.  None  so  well,  indeed,  as  the  Government  of  the 
United  States  may  be  fitted  to  extend  the  invitation  to  this 
second  conference;  a  stranger  to  the  generality  of  the  questions 
which  divide  the  minds  of  other  nations,  its  actions  will  be 
more  efficacious;  the  echo  of  the  opinion  of  a  great  people,  its 
voice  will  be  the  voice  of  a  great  part  of  humanity. 

These  considerations  have  persuaded  me  to  present  the 
following  motion: 

"The  Universal  Congress  of  Lawyers  and  Jurists,  met  in 
St.  Louis,  Missouri,  has  the  honor  to  address  the  Honorable 
President  of  the  United  States,  to  request  him  that  when,  in 
his  judgment,  it  may  be  convenient,  he  will  extend  an  invitation 
to  a  Second  Conference  at  The  Hague,  for  the  discussion  of  the 
questions  relative  to  arbitration  and  such  other  questions  of 
international  law  as  it  may  be  deemed  proper  to  propose." 

It  will  be  a  great  honor  for  this  Congress  to  second  an  idea 
which  in  the  future  may  lead  to  greater  amphfications  in  the 
practices  of  international  arbitration.  Met  together  in  the 
midst  of  the  splendors  of  an  Exposition  which  is  a  marvel  of  the 
modern  world,  all  of  us  who  have  the  honor  to  take  part  in  it 
must  feel  the  aspirations  for  permanent  peace,  giving  to  inter- 
national arbitration  the  greatest  amplitude.     In  this  Exposition 


52       CONGRESS   OF  LAWYERS  AND   JURISTS 

its  most  insignificant  stone  is  an  invitation  to  peace,  and  alto- 
gether it  is  the  most  solemn  altar  which  humanity  has  been 
able  to  erect  to  peace  and  its  manifestations.  This  Congress, 
wheresoever  it  may  turn  its  view,  will  find  an  inspiration  to 
move  it  to  put  forth  every  endeavor  in  order  to  realize  in  its 
full  plenitude  international  arbitration.     [Applause.] 

The  President: 

We  will  now  listen  to  a  further  discussion  of  the  paper  by 
Hon.  J.  H.  Ralston  of  Washington,  D.  C. 

Mr.  Jackson  H.  Ralston,  a  Delegate  from  the  Bar 
Association  of  the  District  of  Columbia,  spoke  as  follows: 

Mr.  President  and  Ladies  and  Gentlemen :  Before  entering 
into  such  a  discussion,  so  far  as  it  is  in  the  prepared  shape  in 
which  I  shall  desire  to  present  it  to  you,  I  want  to  say  a  word 
in  regard  to  the  second  branch  of  the  question  before  us,  that  is, 
international  commissions  generally,  aside  from  The  Hague 
Commission.  In  the  past  one  hundred  years  the  United  States 
has  taken  part  in  some  seventy  arbitrations,  and  the  point  to 
which  I  shall  invite  your  attention  for  the  moment  is  practically 
one  as  to  the  manner  in  which  these  commissions  have  been 
appointed,  and,  as  I  think,  should  be  appointed.  In  almost 
every  case  the  commission  has  consisted  of  three  members,  one 
representing  directly  each  of  the  parties  litigant,  and  the  third 
being  of  a  different  nationality.  This  method  of  selecting  com- 
missions is,  I  think,  fairly  the  subject  of  criticism.  In  my 
judgment  a  commission  should  be  entirely  independent  of  the 
parties  presenting  the  matters  before  it.  [Applause.]  Under 
the  preceding  practice  all  the  important  questions  were  virtually 
left  to  the  judgment  of  a  single  man  as  patriotic  and  natural 
conditions  of  education  have  led  each  party  to  color  their  judg- 
ment, sensibly  or  insensibly,  with  their  nationahty.  We  have 
had  thus  a  series  of  commissions  which  were  virtually  one-man 
commissions,  the  parties  dividing  or  the  nations  dividing  on 
either  hand,  and  leaving  the  arbitration  practically  in  the  hands 


MR.   RALSTON  53 


of  the  umpire.  This  is  a  mistake,  as  I  shall  contend,  because  it 
submits  the  parties  at  interest  to  the  idiosyncrasies,  peculiarities, 
and  mental  tendencies  of  one  man  without  the  opportunity  of 
comparing  his  ideas  and  adjusting  his  views  by  intercourse  with 
others  similarly  and  impartially  situated;  furthermore,  that 
one  man  is  not  permitted  to  arrive  at  his  conclusions  entirely 
apart  from  his  associates.  We  may  refer  to  what  must  have 
been  necessarily  the  condition  of  affairs  even  in  that  greatest  of 
arbitration,  the  Alabama  Arbitration,  when  both  the  United 
States  and  England  were  represented  on  the  commission,  and 
the  disinterested  commissioners,  in  all  their  negotiations,  were 
compelled  to  compare  their  ideas  virtually  in  the  presence  of 
the  interested  parties.  The  only  wonder  is,  Mr.  President, 
that  the  results  of  the  arbitrations,  the  seventy  arbitrations 
referred  to,  have  been  as  excellent  as  they  have,  and  have  been 
acquiesced  in  so  universally  by  the  nations  htigant. 

When  it  came  to  select  members  from  the  Permanent  Court 
of  Arbitration  to  try  the  Pious  Fund  case,  to  which  reference  has 
been  made,  the  United  States  and  Mexico  entered  upon  a  new 
method,  and  agreed  that  the  nationahties  of  the  parties  in  interest 
should  have  no  place  whatsoever  upon  the  court  to  which  the 
controversy  was  submitted,  and  the  same  course  was  followed, 
as  has  been  stated  to  you,  in  the  recent  Venezuelan  preferential 
question,  and,  all  things  considered,  with  excellent  results.  We 
may,  therefore,  hope  that  the  two  precedents  thus  set  will 
harden  into  a  practice  which  will  have  a  tendency  to  insure  the 
absolutely  impartial  and  unbiased  judgment  of  the  arbitrators 
to  whom  causes  may  hereafter  be  submitted,  either  in  The 
Hague  Court,  or  in  other  independent  tribunals. 

In  approaching  the  discussion  of  The  Hague  and  other  inter- 
national tribunals,  we  may  felicitate  ourselves,  those  of  us  who 
are  Americans,  upon  the  happy  history  of  the  United  States 
with  relation  to  international  arbitration.  From  the  earliest 
period  of  our  history,  the  United  States  has  with  remarkable 
freedom  made  use  of  courts  of  this  nature.  The  reason  for 
this  line  of  conduct  is  in  part  to  be  found  in  the  pacific  temper 


54       CONGRESS   OF  LAWYERS  AND   JURISTS 

of  the  people,  who  have  always  recognized  that  peace  had  her 
victories  no  less  renowned  than  war.  In  a  larger  degree,  it 
may  be  ascribed  to  the  happy  situation  of  this  country,  in  that 
it  is  free  from  foreign  entanglements,  independent  in  its  geo- 
graphical situation,  inviting  no  foreign  attack,  because  none 
could  hope  for  success,  and  feeling  no  necessity  for  possessing 
itself  of  the  lands  of  others.  The  United  States  has  been  strong 
enough  to  be  magnanimous,  and  has  had  no  ambition  incon- 
sistent with  the  demands  of  justice.  Whenever  it  felt  that  other 
nations  were  properly  obligated  to  it,  rVmerica  has  been  careful 
in  its  demands,  not  exceeding  the  bounds  of  justice,  and  there- 
fore never  fearing  the  results  of  arbitration.  And  thus  it  has 
happened  that  the  positions  taken  by  the  United  States  have, 
for  the  most  part,  met  with  the  approval  of  commissions  and 
courts  to  which  they  have  been  submitted. 

In  addition,  we  may  feel  a  patriotic  pride  in  the  high  sense 
of  justice  displayed  by  the  United  States  in  its  arbitral  dealings 
with  foreign  nations;  for  the  moment  contenting  ourselves 
with  reference  to  but  two  instances.  When  it  became  known 
that  the  awards  of  the  American  and  Mexican  Mixed  Claim 
Commission  of  1869  in  the  Weil  and  La  Abra  cases  were  based 
upon  fictitious  testimony,  the  United  States  did  not  hesitate  to 
reimburse  Mexico  about  a  half-million  dollars  originally  paid 
by  that  country,  although  a  large  portion  so  paid  had  passed 
into  the  hands  of  the  wrongful  claimants  or  their  representatives 
in  such  manner  that  recovery  by  our  government  was  hopeless. 

Again,  when  it  appeared  that  the  Venezuelan-American 
Arbitration  of  1865  had  been  controlled,  to  the  prejudice  of 
Venezuela,  by  an  unworthy  American  and  a  recreant  Venezuelan, 
the  United  States,  the  facts  once  being  established,  provided 
for  a  review  commission,  consisting  of  two  Americans  of  un- 
doubted probity  and  eminent  distinction,  and  a  Venezuelan  of 
recognized  learning,  this  commission  reducing  materially  the 
aggregate  amount  paid  by  Venezuela. 

Consequent  upon  this  history,  the  United  States  could  have 
been  expected,  and  was  ready,  to  take  part  in  all  the  good  work 


MR.    RALSTON  55 


of  The  Hague  Convention  of  1899,  and  its  history  and  example, 
as  well  as  the  faithful  work  of  its  representatives,  powerfully 
contributed  to  the  notable  results  there  obtained. 

Often  it  is  complained  that  despite  the  existence  of  a  com- 
petent tribunal,  provided  expressly  for  the  settlement  of  inter- 
national difficulties,  wars,  international  and  internal,  have  not 
yet  ceased,  and  appeals  to  this  court,  in  cases  where  the  propriety 
of  the  exercise  of  jurisdiction  would  be  undoubted,  have  not 
always  been  made.  But,  if  we  view  the  subject  dispassionately 
and  philosophically,  it  would  seem  that  there  is  greater  ground 
for  congratulation  than  for  mourning  or  regret. 

The  mere  existence  of  a  court  cannot  insure  a  reign  of 
justice.  As  we  well  know,  tyranny  may  be  practiced  under  the 
most  liberal  institutions,  and  we  witness  liberty  written  into 
law  generations  and  centuries  before  it  is  written  in  the  minds 
and  hearts  of  the  people.  Even  the  Emancipation  Proclama- 
tion has  not  yet  done  its  perfect  work.  Nevertheless,  we  must 
not  refrain  from  constitutional  declarations  favoring  freedom 
because  delay  is  likely  to  ensue  in  its  full  appreciation  and 
enjoyment. 

And  so  with  The  Hague  Court;  we  would  be  thoughtless 
were  we  to  expect  that  the  great  declaration  in  favor  of  peace, 
made  through  its  institution  by  the  civilized  nations  of  the 
earth,  should  bring  about  by  the  act  itself  the  extinction  of  mili- 
tant tendencies  yet  so  common  among  nations  which  consider 
themselves  Christianized  and  believe  themselves  pohte.  We 
have  simply  set  the  goal  most  worthy  of  our  attainment,  and 
which,  after  years  of  endeavor,  we  may  hope  to  reach. 

For  the  first  three  years  following  its  creation,  a  Hague 
Court  was  not  called  into  active  operation,  and  men  wondered 
if  The  Hague  Convention  offered  more,  after  all,  than  the  dream 
of  the  idealist,  while  some  declared  that  so  adverse  to  it  were 
many  of  the  leading  nations  that  the  permanent  court  of  arbitra- 
tion would  be  suffered  to  fall  into  desuetude.  These  feelings, 
bearing  in  mind  the  warhke  history  of  mankind,  were  only 
natural,  but  on  taking  a  closer  view  are  subject  to  dissipation. 


56       CONGRESS   OF  LAWYERS  AND   JURISTS 

The  Hague  Court  is  composed  of  some  seventy  gentlemen  of 
high  intellectual  rank  and  distinguished  honor,  but  who  must 
share  the  aspirations,  ambitions,  and  tendencies  of  their  imme- 
diate environments,  and  who,  it  might  be  feared,  would  have 
been  influenced  by  these  things  even  when  called  upon  to 
display  the  cold  impartiality  of  the  righteous  judge.  Knowing  all 
this,  nations  may  well  have  hesitated,  and  doubtless  do  hesitate, 
for  the  moment,  although  without  sufficient  cause,  to  submit 
their  differences  to  settlement  by  them.  We  can  better  under- 
stand the  possible  position  of  some  European  nations  with 
regard  to  the  court  by  referring  briefly  to  an  actual  dispute 
submitted  it,  and  another  question  which  may  sooner  or  later 
come  before  The  Hague. 

After  a  three  years'  delay,  the  Hague  Court  was  for  the  first 
time  called  into  play  by  the  submission  to  it  of  the  dispute 
between  the  United  States  and  Mexico  relating  to  the  Pious 
Fund  of  the  Californias.  Briefly  it  may  be  stated  that  after 
the  cession  of  Upper  California  to  the  United  States,  the  Roman 
Catholic  bishops  of  California  claimed  a  share  of  the  interest 
upon  the  Pious  Fund,  its  foundation  consisting  of  properties 
belonging  to  a  church  charity,  which  had  been  taken  by  Mexico 
prior  to  the  cession,  and  upon  which  she  pledged  herself  to  pay 
six  per  cent  interest  per  annum.  Before  the  Mexican  and 
American  Mixed  Commission  of  1869,  the  bishops  of  California 
set  up  their  claim  and  were  awarded  twenty-one  years'  interest 
upon  the  estimated  value  of  one-half  the  fund.  For  the  instal- 
ments believed  to  have  accrued  from  that  time  until  1902,  the 
United  States  presented  its  demand,  which  was  referred  to  a 
Tribunal  of  The  Hague  Court  for  decision.  America  largely 
rested  her  contentions  upon  the  doctrine  of  res  judicata, 
while  Mexico  denied  her  obligation  under  this  doctrine  to  pay 
anything  and  maintained  the  insufiicient  foundation  of  the  claim 
in  fact  and  in  law.  The  Hague  Court  decided  in  favor  of  the 
United  States  upon  the  theory  of  res  judicata,  dechning  there- 
fore to  consider  the  other  questions  urged  by  Mexico,  and  pro- 
nouncing a  great  judgment  supporting  the  sanctity  of  arbitral 


MR.    RALSTON  57 


awards.  Suppose,  however,  that  the  situation  had  been  such 
that  The  Hague  Tribunal  had  been  required  to  examine  into  the 
origin  of  the  claim,  would  its  judgment  have  been  similar? 
As  Americans,  familiar  with  the  absolute  separation  of  church 
and  state,  regarding,  as  we  do,  the  church  as  a  corporation 
capable  of  receiving  and  being  deprived  of  property,  and  when 
so  deprived,  entitled  to  payment  therefor  precisely  as  an  indi- 
vidual, we  may  feel  that  the  original  contentions  of  the  United 
States,  as  presented  to  the  commission  of  1869,  should  have 
been  sustained,  but  would  Europeans,  accustomed  to  regarding 
the  church  as  a  branch  of  the  state,  and  to  considering  that 
property  taken  from  the  church  by  the  state  was  simply  trans- 
lated, as  it  were,  from  one  branch  of  government  to  the  other, 
have  arrived  at  the  same  conclusion  ?  This  question  is  at  least 
open  to  grave  doubt. 

Passing  now  to  another  possible  question  which  might  in 
some  phase  go  to  The  Hague  for  settlement,  let  us  consider  the 
responsibility  of  a  state  for  the  acts  of  unsuccessful  revolution- 
ists. This  was  presented  before  the  larger  number  of  the 
umpires  and  commissioners  lately  sitting  at  Caracas.  The 
Venezuelans,  and  the  three  American  umpires,  with  the  Amer- 
ican commissioner,  held  uniformly  that  a  state  could  not  be 
regarded  as  responsible  for  the  acts  of  revolutionists  of  this 
description  save  such  responsibihty  were  created  in  express 
treaty  terms.  The  Continental  umpires  and  commissioners 
were  disposed  to  hold  Venezuela  liable,  one  umpire  going  so  far 
as  to  condemn  her  to  pay  bonds  issued  by  a  revolution  engaged 
in  an  abortive  attempt  to  destroy  the  parent  state.  While  the 
Americans  considered  Venezuela,  fully  admitted  to  the  family 
of  nations,  was  internationally  upon  the  same  footing  as  the 
United  States  or  the  best  established  European  governments, 
the  Europeans  held  that  because  of  her  frequent  revolutions  a 
rule  should  be  applied  to  Venezuela  which  would  not  be  effective 
when  invoked  against  more  powerful  and  longer  established 
governments.  Let  us  then  suppose  a  conflict  involving  this 
principle  to  arise  between  a  South  American  republic  and  a 


58       CONGRESS   OF   LAWYERS   AND    JURISTS 

European  nation.  Might  not  one  or  the  other  party  to  the 
dispute  hesitate  to  have  it  referred  to  a  court  a  considerable 
majority  of  whose  members  would  presumably  be  predisposed 
against  the  view  it  would  be  inclined  to  regard  as  the  correct 
one? 

The  observations  are  submitted  as  indicative  in  some  degree 
of  a  possible  reason  why  The  Hague  Court  has  not  been  resorted 
to  in  larger  measure.  May  not  any  nation  be  excused  for 
hesitating  to  place  itself  under  the  jurisdiction  of  a  court  com- 
posed of  nationalities  whose  disposition,  for  any  of  the  reasons 
above  indicated,  and  possibly  for  others  growing  out  of  the 
education,  environment,  and  mental  tendencies  of  a  great 
majority  of  its  members,  might  be  regarded  as  adverse  to  it  or 
its  institutions? 

But  with  the  tremendous  tendency  among  modern  nations, 
fostered  by  freedom  and  celerity  of  travel,  and  otherwise  and 
consequent  liberal  exchange  of  thought,  towards  uniformity 
of  view  in  international  questions,  should  these  considerations 
be  given  great  weight  ?  Because  even  particular  national  ideas 
seem  antagonized  by  those  of  a  majority  of  the  other  nations, 
should  one  hesitate  to  have  them  tested  in  an  international 
forum  of  some  description  lest  an  adverse  judgment  should 
result  ?  National  views  of  international  law  are  not  immutable, 
even  American  Secretaries  of  State  under  the  pressure  of  differ- 
ent circumstances  having  advocated  differing  views  of  interna- 
tional law,  while  with  the  efflux  of  time  the  more  permanent 
poHcy  of  nations  has  undergone  a  reversal,  as,  for  instance, 
giving  a  minor  illustration,  that  shown  by  the  attitude  of  England 
upon  questions  of  naturalization.  Furthermore,  it  is  only 
through  a  comparison  of  ideas  that  just  conclusions  may  be 
reached.  Again,  it  is  a  positive  gain  to  civilization  to  have  a 
question  submitted  to  The  Hague  Court,  even  though  one  party 
or  the  other  may  feel  assured  that  such  submission  will  be 
attended  by  want  of  success. 

Repeated  references  to  The  Hague  Court  and  other  like 
tribunals  will  serve  to  render  fixed  and  certain  the  now  some- 


MR.    RALSTON  59 


what  nebulous  science  known  as  international  law.  At  present 
nations  clash  upon  their  varying  views  of  the  duties  of  states 
towards  each  other,  and  even  resort  to  arms  to  sustain  them. 
When  the  law  has,  therefore,  itself  become  fixed,  and  its  limita- 
tions and  boundaries  defined  in  the  most  authoritative  manner, 
through  frequent  resort  to  The  Hague  Court,  we  may  expect 
international  disputes  to  lessen  in  number  and  in  severity,  and 
nations  finally  learn  that  even  in  so-called  questions  of  national 
honor  they  are  not  themselves  the  proper  judges. 

In  discussing  The  Hague  Court  one  must  not  lose  sight  of 
the  essential  fact  that  the  very  existence  of  a  Court  has  an 
important  effect  upon  the  relations  of  nations.  Neutral  powers 
may  always  remind  those  whose  passions  are  rising  that  the 
Court  is  open,  while  nations  disposed  to  resort  to  war  are  com- 
mencing to  feel  that  a  case  justifying  appeal  to  arms  before  an 
attempt  to  obtain  a  judicial  settlement  must  be  very  strong, 
and  even  if  cannon  are  made  the  arbiters  the  moral  sense  of 
mankind  must  be  satisfied,  and  want  of  resort  to  The  Hague 
excused,  something  rapidly  growing  impossible. 

I  have  so  far  spoken  of  the  effect  in  an  international  sense 
of  the  formation,  growth,  and  strength  of  The  Hague  Tribunal, 
but  its  internal  effects  should  not  be  overlooked.  External 
war  means  internal  taxation,  and  whatever  contributes  to 
increase  the  severity  and  extend  the  scope  of  taxation  is  likely 
as  an  ultimate  result  to  create  internal  disturbance.  He  was  a 
wise  writer  who  observed  that  the  great  battles  of  liberty  were 
fought  upon  the  question  of  taxation,  and  borrowing  from  the 
novelist  expression  of  his  idea  as  found  in  the  Cloister  and  the 
Hearth,  where  the  hero  of  the  defense  of  the  city,  a  hosier,  was 
brought  before  the  commander  of  the  governmental  forces,  we 
learn  that  on  being  questioned  as  to  the  reason  for  his  action, 
he  stutteringly  said,  "Tuta — tuta — too  much  taxes." 

We  are  informed  that  the  national  government  of  a  nation 
as  enlightened  and  developed  as  the  United  States  expends 
much  the  larger  share  of  its  income  in  meeting  the  expenses 
incident  to  past  and  in  preparing  for  future  wars,  instead  of 


Oo       CONGRESS   OF   LAWYERS  AND   JURISTS 


contributing  this  portion  of  its  yearly  receipts  to  the  increase  of 
the  prosperity  and  happiness  of  its  citizens.  While  this  and 
corresponding  burdens  in  other  states  may  be  borne  for  a  time, 
at  any  rate  by  nations  wealthy  as  our  own,  it  is  gravely  evident 
that  the  weight  of  war  must  create,  sooner  or  later,  and  in 
larger  or  smaller  areas,  internal  revolt.  In  a  reflex  manner, 
therefore,  will  The  Hague  Court  diminish  in  time  internal  bur- 
dens, and  consequently  internecine  difficulties. 

More  than  three  centuries  ago,  Pascal  said,  "When  it  is  a 
question  of  judging  if  one  should  make  war  and  kill  so  many  men, 
condemn  to  death  so  many  Spaniards,  a  single  man  is  the  judge, 
and  he  interested;  there  ought  to  be  an  indifferent  third." 

We  have  now,  after  the  passage  of  centuries,  supplied  that 
indifferent  third.  In  every  manner  we  should  seek  to  increase 
the  powers  and  extend  the  functions  of  this  disinterested  Tri- 
bunal. Even  if  we  believe  such  Tribunal,  for  reasons  of  educa- 
tion and  environment,  to  which  I  have  before  alluded,  is  feared 
or  known  to  be  prejudiced  against  us,  is  it  not  better  to  submit 
to  its  judgment  and  thereby  strengthen  its  powers  than  to  engage 
in  a  quarrel  as  to  the  merits  of  which  the  judgment  of  impartial 
history  may  after  all  be  contrary  to  our  ideas  ?     [Applause.] 

The  President: 

One  matter  has  been  omitted  that  should  have  been  attended 
to  earlier  in  the  day,  and  that  is  the  appointment  of  members 
of  the  Committee  of  Nations. 

The  Honorable  Amos  M.  Thayer,  a  Delegate  of  the 
United  States  Judiciary: 

Mr.  President:  I  move  you  that  the  persons  whose  names 
appear  upon  this  list  which  I  hold  in  my  hand  be  selected  to 
serve  as  a  Committee  of  Nations.  I  will  ask  that  the  Secretary 
read  them. 

The  Secretary  [reading]: 

Argentine,  Dr.  Jose  V.  Fernandez. 

Austria,  Chevalier  A.  von  Stribal. 


THE   COMMITTEE    OF   NATIONS  6i 

Belgium,  M.  Valentin  Brifaut. 

British  Empire,  Mr.  Justice  Nesbitt  of  Canada. 

China,  Mr.  Sun  Sze  Yee. 

France,  Professor  Georges  Blondel. 

Germany,  Herr  Paul  Doertenbach. 

Italy,  Professor  F.  Ferraris. 

Mexico,  Senor  Don  Emeterio  de  la  Garza. 

Netherlands,  Dr.  D.  J.  Jitta. 

Sweden,  Vice- Judge  G.  E.  Fahlcrantz, 

Switzerland,  Dr.  F.  Meili. 

United  States  of  America,  Mr.  J.  M.  Dickinson  of  Chicago. 

The  motion  being  duly  seconded  and  carried  unani- 
mously, the  nominees  were  declared  chosen  as  members 
of  the  Committee  of  Nations. 

The  President: 

I  give  notice  that  the  Committee  of  Nations  is  requested  to 
meet  immediately  after  the  adjournment  of  this  session,  right 
here  on  the  platform,  and  organize. 

I  call  your  attention  to  two  other  matters:  one  is,  that  any 
member  of  the  Congress  desiring  to  propose  any  matter  for 
consideration  may  do  so  by  presenting  a  written  motion  over 
his  signature;  secondly,  that  whenever  there  is  opportunity  for 
general  discussion,  any  member  who  desires  to  engage  in  that 
general  discussion  must  send  up  his  card  stating  that  fact,  other- 
wise he  will  not  gain  recognition. 

The  Secretary: 

A  motion  presented  by  Senor  Velasco,  a  Delegate  from 
the  Mexican  Government,  has  already  been  read  by  him  in  the 
course  of  his  paper. 

A  Delegate: 

It  was  not  heard. 

The  Secretary: 

Do  you  call  for  the  reading  of  it? 


62       CONGRESS   OF  LAWYERS  AND   JURISTS 

A  Delegate: 
I  do. 

The  Secretary  [reading]: 

"The  Universal  Congress  of  Lawyers  and  Jurists,  met  in 
St.  Louis,  Missouri,  has  the  honor  to  address  the  Hon.  President 
of  the  United  States,  to  request  him  that  when  in  his  judgment 
it  may  be  convenient  he  will  extend  an  invitation  to  a  Second 
Conference  at  The  Hague,  for  the  discussion  of  the  questions 
relative  to  arbitration  and  such  other  questions  of  international 
law  as  it  may  be  deemed  proper  to  propose." 

The  Secretary  stated  that  he  had  received: 

A  motion  from  Mr.  Everett  P.  Wheeler  of  New  York, 
a  Delegate  of  the  United  States  Government,  requesting  the 
committee  to  make  arrangements  for  the  holding  of  subsequent 
meetings  in  the  Hall  of  Congresses,  owing  to  the  difficulty  of 
hearing  in  Festival  Hall. 

Also,  a  motion  offered  by  Dr.  Jose  V.  Fernandez  of  the 
Argentine  Republic,  a  Delegate-at-large,  that  the  Congress 
approve  certain  declarations  that  he  has  formulated  in  regard 
to  trusts,  socialism,  liberty  in  the  making  of  wills,  rights  and 
duties  between  parents  and  children,  and  divorces. 

Also,  a  motion  by  the  Honorable  G.  A.  Finkelnburg  of 
Missouri,  a  Delegate  of  the  United  States  Government,  that  the 
Congress  express  itself  in  favor  of  the  proposed  modification  of 
the  laws  of  maritime  warfare  as  submitted  to  the  late  Peace 
Conference  at  The  Hague. 

Also,  a  motion  by  Mr.  Ferdinand  Shack,  a  Delegate  from 
the  United  States  Government,  that  the  Congress  express  its 
deep  gratification  at  the  steps  recently  taken  by  the  Interparlia- 
mentary Union  towards  the  settlement  of  controversies  between 
nations  in  the  same  manner  as  disputes  between  individuals, 
and  satisfaction  at  the  announcement  by  the  President  of  the 
United  States  of  his  intention  to  comply  with  the  request  made 
to  him  by  said  Union  that  he  invite  the  nations  to  a  conference. 


ANNOUNCEMENTS  63 

The  President  announced  that  all  these  motions 
would  go  to  the  Committee  of  Nations,  which  would 
report  on  them  the  following  day. 

Mr.  Rawle,  a  Delegate  from  the  United  States  Govern- 
ment, on  behalf  of  the  banquet  committee,  made  an 
announcement  in  regard  to  the  banquet  to  be  held  on  the 
evening  of  this  day  at  the  "Tyrolean  Alps,"  stating  the 
particulars  in  regard  to  the  admission  to  the  grounds  and 
to  the  banquet-room. 

The  Secretary  stated  that  he  had  just  received  a 
proposed  resolution  in  regard  to  the  desirability  of  an 
international  exchange  of  law  publications,  which  the 
President  announced  would  also  be  sent  to  the  Com- 
mittee. 

At  this  point  the  Universal  Congress  adjourned  until 
10  A.M.,  September  29,  1904. 

[On  the  evening  of  Wednesday,  September  28,  a  banquet  was 
given  by  the  Exposition  Company  to  the  members  of  the  Congress 
and  the  American  Bar  Association  in  the  banquet-hall  of  the  "Tyro- 
lean Alps."  Six  hundred  and  fifteen  guests  were  seated  at  the 
tables.  Mr.  Francis,  President  of  the  Exposition,  acted  as  toast- 
master.  In  his  opening  speech,  he  proposed  a  health  to  the  President 
of  the  United  States.  The  guests  stood  while  the  toast  was  drunk, 
and  the  band  struck  up  "America,"  which  the  whole  company  joined 
in  singing.  The  toast-master  then  proposed  a  health  to  the  ruler  of 
each  country  represented  at  the  banquet.  The  proposal  was  received 
with  cheers,  and  the  toast  drunk  standing,  the  band  again  playing  the 
national  anthem.  Speeches  were  made  by  Mr.  Justice  Brewer, 
President  of  the  Congress;  Mr.  Justice  Kennedy  of  England;  Dr. 
HARTMANNof  Germany;  Professor  Blondel  of  France ;  Chevalier  von 
Stribal  of  Austria;  M.  Francotte,  Secretary  of  State  of  Belgium; 
Signor  Pa  via  of  Italy;  Mr.  Chow  of  China;  His  Excellency  Senor 
AzpiRoz,  Ambassador  from  Mexico;  Judge  Tuck  of  Egypt;  Mr. 
James  Hagerman,  retiring  president  of  the  American  Bar  Associa- 
tion; Mr.  Henry  St.  George  Tucker,  newly  elected  president  of 
the  Association ;  former  Senator  Manderson  of  Nebraska;  and  Mr. 
F.  W.  Lehmann  of  St.  Louis.  During  the  evening  excellent  music 
was  furnished  by  the  Symphony  Orchestra  of  the  Exposition.] 


64       CONGRESS   OF  LAWYERS  AND   JURISTS 

SECOND    DAY 

Thursday,  September  29,  1904 
MORNING   SESSION 

The  Congress  was  called  to  order  by  President  Brewer 
at  ten  o'clock  in  the  forenoon. 

The  President: 

If  there  is  no  objection  we  will  dispense  with  the  reading  of 
the  minutes.  They  will  all  be  pubhshed  for  your  benefit  here- 
after. The  roll-call,  of  course,  will  be  omitted.  There  is  an 
announcement  that  the  Secretary  would  hke  to  make  before 
the  reading  of  papers. 

The  Secretary: 

At  the  conclusion  of  the  morning  session  to-day,  and  Hkewise 
to-morrow,  a  luncheon  for  the  Delegates  and  guests  will  be 
served  on  the  stage  in  this  hall.  An  invitation  has  been  received 
from  the  Board  of  Lady  Managers  of  the  Exposition  to  all  of  the 
Delegates  and  the  ladies  in  their  party  for  a  reception  in  their 
honor  at  the  rooms  of  the  Board  on  Friday  evening. 

Mr.  F.  H.  Busbee  of  North  Carolina,  a  Delegate-at- 
large : 

I  desire,  by  universal  consent,  to  introduce  a  resolution  in 
regard  to  the  illness  of  that  distinguished  American,  George  F. 
Hoar,  and  it  may  take  such  course  as  the  rules  prescribe. 

The  President: 

It  will  be  referred  to  the  Committee  of  Nations. 

The  next  business  is  the  reading  of  the  paper  by  Judge 
GusTAF  Edw.  Fahlcrantz  of  Stockholm,  Sweden,  on  "The 
Preferable  Method  of  Regulating  the  Trial  of  Civil  Actions  with 
Respect  to  Pleading  and  Evidence." 


PAPER    OF   HERR   FAHLCRANTZ  65 

Vice- Judge  Gustaf  Edw.  Fahlcrantz  of  Stockholm, 
Sweden,  a  Delegate-at-large : 

Mr.  President,  Ladies  and  Gentlemen:  I  cannot  enter  on 
the  subject  for  which  I  am  standing  here  without  expressing  my 
sorrow  for  the  deplorable  loss  of  Judge  Seymour  D.  Thompson, 
who  had  signed  the  very  telegram  which  called  me  here,  and 
whose  friendship  I  had  been  so  happy  to  enjoy  for  many  years. 
I  had  heartily  hoped  to  see  him  now,  but,  alas,  I  have  had  only 
to  bring  with  me  a  wreath  and  lay  it  on  his  grave.  I  have  no 
right  to  speak  for  somebody  else,  but  when  I  say  that  I  had 
written  upon  the  one  ribbon  with  the  Swedish  colors,  "Thanks 
for  noble  friendship,"  I  know  that  many  of  those  who  are 
assembled  here  will  join  me  in  similar  thanks.  And  in  the 
words  written  on  the  other  ribbon,  "Peace  of  God  over  him," 
all  of  you  will  most  certainly  join  with  me  very  heartily. 

The  Preferable  Method  of  Regulating  the  Trial 
OF  Civil  Actions  with  Respect  to  Pleading  and 
Evidence, 

a  paper  by 

Vice- Judge  Gustaf  Edw.  Fahlcrantz,  Advocate  of 
Stockholm,  Sweden: 

About  twenty  years  ago,  when  at  different  periods  I  was  a 
daily  visitor  of  the  English  courts.  Lord  Lindley  (then  Lord 
Justice  Lindley)  said  to  me:  "The  Germans,  you  see,  have 
much  more  of  science  in  their  administration  of  justice;  we 
take  it  more  as  a  practical  thing."  I  have  very  often  had 
those  words  before  my  mind,  especially  later,  during  the  year  I 
spent  in  Germany  in  continuation  of  my  comparing  inquiries 
on  the  field  of  "civil  procedure";  and  I  think  I  have  found  a 
very  good  correlative  to  that  expression  when  I  am  quoting 
some  words  once  said  to  me  by  his  Excellency  von  Drenkmann, 
the  president  of  the  old  "  Kammergericht,"  the  Supreme 
Court  of  Prussia:  "We  have,  here  in  Germany,"  he  said,  "three 


66       CONGRESS   OF   LAWYERS  AND   JURISTS 

orders  (instances)  of  courts;  but  above  them  all  a  fourth,  the 
science."  On  each  side  a  man  speaking  who  certainly  knows 
his  system  and  his  people. 

But  even  if  the  said  high  authorities  had  not  in  such  an  excel- 
lent and  striking  way  expressed  what  is  characteristic  for  the 
one  and  the  other  of  both  systems,  anybody  will  easily  come 
upon  the  idea  that  there  are  two  different  ways  for  arriving  at 
an  answer  to  the  question  raised,  or  that  the  method  must 
depend  upon  the  view  we  take  of  the  administration  of  justice 
itself  as  either  a  practical  thing  or  a  matter  of  science. 

When  I  am  speaking  of  administration  of  justice  as  a  prac- 
tical thing,  I  am  looking  upon  it  mainly  as  means  of  help,  a 
means  of  assisting  those  who  are  suffering  wrong;  it  is  here  the 
need  of  the  individual  case  which  excites  the  beneficial  work 
of  the  judge,  and  the  leading  principle  is:  The  facts  make  the 
law;  or,  as  I  have  seen  it  written  on  a  copy  of  an  old  Swedish 
law  code,  "No  law  is  better  to  follow  than  the  truth." 

Administration  of  justice  again  as  a  science  looks  upon 
matters  more  from  a  generalizing  point  of  view,  under  which 
each  case  is  put  in  a  certain  class  with  respect  to  some  certain 
great  features  or  certain  signs.  The  individuality  of  the  case 
is  not  so  closely  considered. 

But  these  features  are  fixed  in  such  a  way  that  commonly  the 
result  will  be  right,  if  you  are  taking  advice  from  them.  The 
peculiar  cases,  which  have  a  character  of  their  own,  may  in  this 
way  be  in  great  danger  to  go  astray,  but — and  though  it  is 
especially  the  cases  having  an  aspect  of  their  own  that  come 
before  the  courts — that  misfortune  for  the  interested  private 
parties  is  supposed  to  be  balanced  by  the  benefit  for  the  courts 
of  not  being  bound  to  spend  their  work  upon  all  the  trivial 
particulars,  but  to  be  entitled  to  keep  themselves  above  a  good 
deal  of  the  low  reality  and  in  the  lofty  skies  of  logical  ideas. 
The  science  has  thus  made  binding  forms  of  its  own  and  con- 
structed its  system. 

I  have  not  the  slightest  doubt  that  the  right  purpose  of 
justice  is  the  one  first  alluded  to.     But  if  so,  the  first  thing  for 


PAPER   OF   HERR   FAHLCRANTZ  67 

it  must  always  be  to  have  facts  duly  stated,  and,  I  mean,  the 
paramount  question  in  the  English  system  is  also  the  question 
of  the  truth  in  the  individual  case. 

In  the  German  system  the  question  of  the  facts  has  since 
long  been  a  very  much  formal  one,  and  still  in  this  moment, 
even  with  the  admirable  progress  of  the  new  civil  code  of 
Germany,  the  relative  abstractness  of  the  idea  of  the  truth  or 
of  the  question  of  fact  is  conspicuous. 

At  the  side  of  the  English  system  we  have  to  place  the  old 
Roman  one,  many  leading  ideas  of  which  it  has  brought  to  the 
highest  degree  of  accomphshment.  And,  of  course,  the  Amer- 
ican system,  the  alter  ego,  or  the  daughter  of  the  English  one, 
belongs  here,  even  if  it  has  lost  some  traces  of  its  mother.  We 
have  to  give  attention  here,  too,  to  our  old  Swedish  system, 
which,  as  many  of  the  ancient  ones,  so  exclusively  looked  upon 
the  need  of  the  individual  case,  that  it  had  constructed  special 
modes  of  trial,  so  to  say,  for  every  Httle  class  of  facts. 

At  the  side  of  the  German  system,  again,  we  must  place  the 
French  one,  perhaps  the  most  prominent  feature  of  which  is  a 
decided  diffidence  in  the  truth  as  deposited  in  the  minds  of  men. 
It  has,  with  French  clearness  and  sagacity,  constructed  different 
modes  of  trial  for  different  cases,  but  wanting  the  most  effective 
expedient,  I  mean  that  of  taking  the  truth  without  any  considera- 
tions from  the  parties  themselves,  the  said  modes  have  got  in 
great  part  a  certain  schematic  character,  to  which  "/a  souve- 
raineU  du  juge^^  can  scarcely  give  a  proper  counter- weight  of 
individuahsm.  Our  present  Swedish  system  belongs  to  the 
same  side,  it  being  marked  with  a  decided  pessimism  regarding 
the  very  possibihty  for  judges  of  finding  out  the  real  truth  in 
individual  cases.  As  a  substitute  thereto  it  has  accepted  certain 
mere  formal  and  technical  views  of  the  matters,  and  its  char- 
acter is  expressed  thereby  that  in  the  name  of  "unity  of  proce- 
dure" it  requests  one  and  only  one  ordinary  way  of  trying  all 
different  cases — from  claims  of  debts  to  divorce,  or  the  most 
entangled  questions  of  administration,  as  well  as  from  the  most 
insignificant  offences  to  questions  of  murder. 


68       CONGRESS   OF   LAWYERS   AND   JURISTS 

And  as  a  general  rule  the  present  systems  of  the  European 
Continental  states  do  not  essentially  differ  from  the  German  or 
ut  ita  dicam,  a  Franco- German  type. 

The  Norwegian  and  the  Danish  systems  keep,  however,  still 
so  many  of  the  old  practical  ideas,  common  formerly  for  the 
Scandinavian  kingdoms,  and  have  been  developed  in  a  way  so 
decidedly  corresponding  to  notions  of  English  equity,  that  they 
may  be  said  to  take  a  place  between  both  the  principal  groups, 
if  we  must  not  unconditionally  place  them  in  the  first  one. 

But  I  should  not  describe  or  compare  all  different  ancient 
or  actual  systems.     What  is  preferable  ? 

There  is  no  doubt  that  to  a  great  extent  a  legislator  has  to 
build  with  the  materials  given  by  the  historical  development  of 
the  state  and  of  the  public  life  as  a  whole,  and  especially  to 
reckon  with  the  moral  and  intellectual  notions  prevailing  in 
the  society  as  well  as  with  geographical  and  other  conditions 
of  many  kinds.  But  we  may  suppose  that  in  a  certain  state 
where  we  are  going  to  introduce  our  system,  no  peculiar  hin- 
drance is  in  our  way.  We  take  it  that  the  administration  of 
justice  exists  there  more  as  a  practical  thing  and  to  help  parties 
get  their  rights,  with  respect  to  any  and  all  circumstances  in 
each  case.  These  circumstances  must  at  first  be  known — and 
how  should  a  court  get  that  knowledge  ?  Of  course,  by  taking 
it  where  it  is  to  be  found  or  from  anybody  who  can  give  it — and 
that  should  be,  I  think,  the  very  first  and  the  main  rule  of  evi- 
dence. The  practical  importance  of  that  rule  will  appear 
when  it  is  observed  that  in  the  great  bulk  of  cases  the  parties 
themselves  know  best  of  all  what  is  true,  and  when  it  is  observed, 
also,  what  a  peculiar  privilege  a  great  many  think  the  parties 
ought  to  enjoy  regarding  that  knowledge  of  theirs.  Very  often 
no  one  but  the  parties  knows  more  than  a  vain  shadow  of  the 
material  facts.  Would  it  then  be  necessary  to  give  some  scien- 
tific proofs  for  the  propriety  of  taking  effectually  the  truth  from 
the  parties  ?  Let  me  say  at  first  simply  this :  If  two  men  would 
apply  to  me  for  my  opinion  of  what  may  be  right  in  some 
intricate  case  between  them,  and  if  I  should  find  that  they 


PAPER    OF   HERR   FAHLCRANTZ  69 

begin  to  keep  back  documents  or  deceive  me  with  false  stories, 
I  think  I  should  be  amply  justified  to  let  them  in  some  very 
expressive  way  understand  that  I  cannot  have  anything  to  do 
with  their  controversy.  And  it  is  not  too  much  to  say,  that  the 
state,  when  letting  people  go  to  its  courts  for  getting  justice, 
must  be  entitled  to  claim  from  the  parties  what  most  naturally 
any  arbitrator  expects  from  them.  American  and  English 
jurists  will  see  every  plea  for  such  a  claim  as  that  as  being  quite 
uncalled  for,  because  for  them  the  duty  corresponding  to  that 
claim  is  quite  obvious;  but  the  question  stands  quite  different 
on  the  Continent  of  Europe. 

Truth-speaking  before  the  court,  it  is  said  there,  may  be  a 
moral  duty  for  parties;  to  lie  positively  might  in  certain  cir- 
cumstances be  punished,  but  a  general  duty  for  parties  to  tell 
the  jull  truth  exists  on  the  whole  not  among  other  than  the 
Enghsh-speaking  nations. 

"The  state  has,  as  regards  civil  actions,  no  direct  interest 
to  hinder  parties  from  procuring  rights  by  lies  or  clear  themselves 
of  their  duties  by  lies."  By  these  words  the  very  president  of 
our  Swedish  great  Law  Reform  Commission  has  stated  his 
opinion,  and  the  reigning  quasi-scientific  opinion  on  the  question. 

The  same  words  express,  however,  the  T:pin<r^i}'r}udo<;  and 
that  4'rjv8i>e;  is  a  thesis  of  a  new  philosophy  with  us,  because  our 
old  laws  and  legislators  were  all  filled  with  the  same  idea  which 
was  expressed  by  our  great  Gustavus  Adolphus  when  he  said, 
that  through  the  administration  of  justice  "all  wrong  and 
falsehood  should  be  crushed  and  abohshed."  It  is  also  quite 
evident  that  with  such  a  new  philosophy  the  truth  has  lost  its 
mightiest  support,  because  if  it  is  considered  to  be  of  no  direct 
interest  for  the  state  to  keep  up  the  truth,  it  cannot  reasonably 
be  requested  from  a  party  to  tell  the  truth  when,  as  a  matter  of 
fact,  he  can  gain  what  he  wishes  by  a  He;  and  that  it  is  not 
simply  a  secondary  interest,  but  a  direct  and  vital  public  interest, 
that  all  functions  of  the  state  should  be  built  upon  reahty,  truth, 
and  honesty,  is  so  evident,  that  I  scarcely  think  that  anybody 
here  objects  that  I  state  that  thesis  as  an  axiom. 


70       CONGRESS   OF  LAWYERS  AND   JURISTS 

And  from  the  point  of  view  of  the  parties  it  cannot  be  the 
question  here  of  only  a  moral  duty.  Speaking  generally  about 
the  truth,  I  am  not  going  so  far  as  to  say  that  it  is  in  every 
situation  of  men's  life  a  duty  to  tell  the  truth — in  all  events  not 
to  say  the  full  truth.  Most  of  us  are,  of  course,  in  the  habit  of 
lying  a  great  deal  every  day;  for  lack  of  time,  from  mental 
lassitude,  for  covering  logical  errors,  from  courtesy  or  gallantry, 
from  kindness  or  benevolence,  but  we  do  not  lie  for  gaining  a 
benefit  on  the  account  of  somebody  else.  If  a  man  cross  that 
limit,  he  acts  against  any  normal  conscience  and  immorally,  he 
deceives  that  other  man  and  he  should  as  a  rule  come  under 
the  law.  But  if  a  man  is  standing  before  a  court  and  lies  there 
in  order  to  gain  a  benefit  on  the  account  of  some  other  man,  he 
is  deceiving  also  the  court,  he  is  disturbing  and  hindering  the 
state  in  the  exercise  of  its  most  holy  power,  and  it  seems  simply 
natural  to  consider  that  as  a  crime — it  is,  in  all  events,  much 
more  than  a  simple  contempt  of  court. 

Therefore,  an  oath  sworn  by  a  party  cannot  be  considered 
as  a  condition  for  making  the  court  entitled  to  punish  him,  if 
he  hes.  It  seems  necessary  only  to  let  the  parties  get  beforehand 
a  strong  remembrance  of  their  duty  by  a  solemn  warning  or  an 
admonition  to  them  to  speak  the  truth,  the  full  truth,  and 
nothing  but  the  truth.  To  let  them  swear  an  oath,  reasonably 
formulated,  is,  however,  most  proper  with  respect  to  the  moral 
bond  the  oath  lays  upon  men. 

An  unlimited  duty  on  the  parties  with  respect  to  editio  docu- 
mentorum,  production  of  documents,  is  only  an  integrant  part 
or  a  direct  consequence  of  the  general  duty  on  the  parties, 
spoken  of  above,  to  reveal  the  truth.  And  as  the  state  must 
not  be  made  unable  to  fulfil  its  first  purpose,  or  as  a  second 
consequence  of  the  main  rule  of  evidence,  the  state  should  be 
entitled  to  claim  the  unrestricted  truth  in  any  case,  also  from 
all  other  men,  if  the  parties  themselves  cannot  reveal  all  the 
necessary  truth. 

The  result  of  what  we  have  said  is  this:  As  well  as  the 
parties  should  be  witnesses,   every  other  person  who  knows 


PAPER   OF   HERR   FAHLCRANTZ 


anything  about  the  case,  even  if  he  had  some  interest  therein, 
should  be  bound  to  give  evidence,  or  to  give  true  information 
about  the  case  at  any  time  of  the  proceedings;  and  as  a  general 
principle,  no  incompetency  in  consequence  of  relationship  to 
some  party  or  of  some  other  reason  should  be  admitted.  It  is  for 
the  judge  to  consider  the  trustworthiness  of  the  witness  and  to 
give  in  that  respect  the  wanted  warning  to  laymen  if  such  ones 
have  to  give  a  verdict  in  the  case.  All  that  may  be  contained 
in  duces  tecum,  an  unlimited  duty  for  third  persons  to  produce 
documents  being  under  their  power,  follows  as  a  matter  of 
course. 

An  exception  from  that  general  duty  for  everybody  to  reveal 
the  truth  in  lawsuits  is  from  our  point  of  departure  to  be  allowed 
only  when  the  interest  of  the  state  itself  might  claim  it.  If  for 
a  personal  interest,  for  avoiding  a  pecuniary  loss,  shame,  or 
criminal  prosecution,  somebody  wishes  not  to  be  heard  as  a 
witness,  he  should  at  least  be  prepared  to  pay  the  loss  of  the 
party  suffering  by  such  a  reticence. 

But  if  it  is,  as  we  have  supposed,  the  first  thing  for  the 
justice  to  help  the  one  suffering  wrong  in  such  a  way  as  his 
individual  case  may  require,  it  must  be  a  part  of  the  purpose  of 
justice  to  do  so  also  when  that  cannot  be  effected  by  examining 
the  parties  and  other  persons  knowing  something  about  the 
matter  in  question.  That  is  the  case  when  a  lites  aestimatio  is 
wanted,  or  in  the  innumerable  lot  of  cases,  where  a  certain 
value — for  example,  damages — should  be  assessed.  I  will  not 
speak  much  about  fixing  such  a  value  by  oath  of  the  party 
injured.  That  is  evidently  a  rather  inequitable  and  dangerous 
way,  which  can  reasonably  be  had  recourse  to  only  if  no  other 
way  stands  open,  and  especially  if  the  injuring  party  has  fraudu- 
lently set  the  plaintiff  out  of  means  to  prove  his  loss  otherwise. 

In  ordinary  circumstances  it  is  not  quite  impossible  to 
obtain  evidence  here  by  examining  witnesses  in  the  regular  way; 
but  it  is  easy  to  understand,  and  an  observer  will  see  it  daily  in 
our  Swedish  courts,  that  this  method  works  very  badly  in  such 
cases.     If  witnesses  are  to  be  used  they  should  also  in  questions 


72       CONGRESS   OF  LAWYERS  AND   JURISTS 

of  an  assessment  come  intact  before  the  court.  But  in  order 
to  prepare  them  it  is — or  seems,  at  least,  with  us — rather  natural 
that  the  party  brings  his  witnesses  to  the  place  in  controversy, 
or  to  the  ship  where  the  wares  whose  quality  is  questioned 
are  stored,  and  thai  he  puts  before  their  eyes  or  other  senses 
all  such  facts  and  circumstances  which  may  impress  their 
minds  in  a  way  favorable  to  him;  and  the  other  party,  when 
preparing  in  his  turn  his  witnesses  follows  a  similar  one-sided 
method.  Both  sets  of  witnesses  see  in  such  circumstances 
mainly  with  the  eyes  of  their  instructors;  and  so  it  happens 
generally,  as  it  happened  once  before  the  town  court  of  Stock- 
holm, that  five  or  six  of  the  best  men  of  the  Exchange  of  Stock- 
holm called  by  the  plaintiff,  solemnly  swore  that  a  certain 
coffee  cargo  was  not  equal  to  the  standard  sample,  and  that 
immediately  after  about  five  or  six  other  men  of  equally  good 
reputation,  called  as  witnesses  by  the  defendant,  declared  on 
oath  that  the  same  cargo  was  of  the  required  quality.  Such  a 
result  is  not  less  natural  than  unsatisfactory. 
It  is  obvious: 

1.  That  if  a  view  by  the  witnesses  is  wanted,  such  a  view 
ought  to  take  place  in  the  presence  of  both  parties,  or  an  impar- 
tial exhibitor — as  usual  earlier  in  the  United  States.  It  is  even 
so  obvious 

2.  That  if  on  the  whole  a  view  is  practicable,  it  is  very 
much  to  recommend  that — as  formerly  usual  in  Sweden — the 
investigators  should  be  appointed  by  the  judge  or  by  some 
other  public  officer;    and  also, 

3.  That  such  investigators  should  be  selected  among  people 
being  particularly  familiar  with  the  special  sort  of  things  or 
questions  involved  in  the  view. 

Among  all  the  different  methods,  of  which  I  have  got  experi- 
ence in  different  countries,  to  procure  evidence,  in  matters  of  the 
kind  now  in  question,  I  scarcely  think  any  is  better  than  the 
one  now  in  use  in  Norway. 

The  Norwegians  have  built  a  most  practical  system  upon 
an  old  popular  institution,  common  for  all  the  three  Scandinavian 


PAPER    OF   HERR    FAHLCRANTZ  73 

kingdoms,  that  of  "good  men"  answering,  after  view,  questions 
of  fact ;  but  while  in  Sweden  the  ultra-bureaucratic  atmosphere 
of  our  courts  has  choked  that  institution,  as  all  the  great  old 
ones,  the  Danes,  and  still  more  and  in  a  happier  way  the  Nor- 
wegians, have  piously  watched  and  cautiously  developed  it  to 
a  true  civil  jury,  without  the  name  of  jury. 

To  that  institution  '^syn  og  sko?i,"  to  which  recourse  is 
taken,  in  causes  of  the  most  various  kinds,  the  high  and 
practical  character  of  the  jurisprudence  of  my  neighbor 
countries  is  undoubtedly  due  more  than  to  anything  else. 

Having  that  institution  of  my  brother  country  Norway 
before  my  mind,  I  think  that  in  the  districts  round  each  of  the 
inferior  courts  a  number  of  good  and  trustworthy  men  or 
women,  representing  the  different  kinds  of  knowledge  and 
skill  within  the  province  of  which  disputes  generally  occur, 
should  be  selected  by  the  inhabitants  or  proper  corporations 
of  them;  and  the  judge,  as  a  rule,  should  have  to  take  from 
that  number  four  persons  to  make  the  investigation,  which 
might  be  requested  by  some  of  the  parties,  or  which  the  judge 
himself  might  find  to  be  wanted.  When  such  an  investigation 
should  require  a  more  special  or  scientific  experience,  for  which 
representatives  are  not  to  be  found  in  such  districts,  the  in- 
vestigators should  be  taken  from  other  circles,  according  to 
special  arrangements.  If  the  parties  agree  on  certain  persons, 
and  these  are  wilhng  to  act,  these  should  be  investigators.  The 
investigators  should  have  to  appoint  among  themselves  an 
umpire,  having  a  casting  vote.  The  said  investigators  to  make 
the  necessary  researches  on  the  place  where  the  object  in  dis- 
pute is,  or  the  object  to  be  brought  before  them  on  a  time  to 
be  fixed  by  the  judge  according  to  the  convenience  of  the  parties, 
who  of  course  should  be  present  in  order  to  draw  the  attention 
of  the  investigators  to  any  point  which  they  could  think  to  be 
of  importance.  Witnesses  to  be  heard,  if  some  of  the  parties 
so  require,  and  the  parties  to  be  compelled  to  give  any  informa- 
tion requested  by  the  investigators,  the  judge  always  to  be 
present,  and,  if  wanted,  also  the  secretary  of  the  court,  and 


74       CONGRESS   OF  LAWYERS  AND   JURISTS 

the  judge  to  be  the  formal  leader  of  the  said  investigation,  and 
to  see  that  all  lawful  interests  should  be  attended  to,  especially 
those  of  a  party  who  may  not  be  able  to  take  care  of  them. 
A  most  important  duty  for  the  judge  should  be  to  take  care 
that  the  investigators  do  not  go  over  their  competency, 
which  should  comprise  matters  of  pure  facts,  and  therefore, 
also,  to  draw  up  the  record  or  the  instrument  of  view  accord- 
ing to  the  dictates  of  the  investigators,  or  according  to  what 
he  understands  what  they  mean  to  say.  The  judge  should  not 
have  to  mix  himself  in  the  contents  of  the  verdict  more  than  to 
see  to  it  that  contradictions  may  be  avoided,  that  the  verdict 
answers  all  the  questions  involved,  and  that  the  verdict  gets 
fixed  and  intelHgible.  In  the  same  way,  as  no  legal  question 
may  be  involved  in  that  instrument,  the  judge  alone  should 
decide  such  legal  questions  which  might  arise  during  the  trial, 
and,  for  example,  also  the  question,  which  may  be  the  right 
result  of  the  suffrages  of  the  investigators.  It  is  undoubtedly 
in  consequence  of  the  Norwegians  having  understood  so  clearly 
how  to  draw  and  keep  up  the  limits  between  issues  of  facts 
and  issues  of  law,  or  between  the  province  of  the  judge  and 
the  one  of  the  layman,  that  we  find  that  part  of  the  proceedings 
to  give  such  prosperous  results  for  their  judicial  practice,  as 
well  as  for  the  development  of  their  jurisprudence  as  a  whole. 

The  verdict  of  the  investigators  should,  of  course,  be  binding 
on  the  judge,  in  such  a  way  that  he  should  not  be  able  to  make 
another  valuation  of  his  own.  If  some  party  is  unsatisfied  with 
the  result,  the  Norwegians  give  him  a  right  to  request  a  new 
investigation,  to  be  held  by  a  double  number  of  men,  or  eight, 
which  should  be  named  by  the  same  judge,  and  have  to  act 
in  the  same  way  as  above. 

I  hold  that  method  of  new  trial,  on  the  whole,  to  be  just, 
but  I  think  that  such  a  benefit  should  be  counterbalanced  by 
a  duty  for  the  discontented  party,  as  a  rule,  to  pay  the  costs 
of  the  new  trial,  and  that  such  a  new  trial  should,  perhaps, 
also  be  made  dependent  upon  whether  it  could  be  reasonably 
believed  that  a  better  set  of  investigators  could  be  found,  sup- 


PAPER   OF   HERR   FAHLCRANTZ  75 

posed,  of  course,  always,  that  if  some  irregularity  which  could 
affect  the  result  had  occurred,  that  should  always  be  a  good 
ground  for  a  new  trial,  or  for  simply  canceling  the  first  verdict 
and  beginning  the  trial  anew.  Whether  it  would  be  advisable 
to  deliver  the  very  appointment  of  the  eight  men  to  the  governor 
or  some  other  man  but  the  judge  might  depend  upon  a  con- 
sideration of  special  circumstances  in  different  countries. 

Anybody  will  observe  that,  in  a  system  as  the  one  above 
spoken  of,  the  laymen  have  no  opportunity  to  say  "For  the 
plaintiff,"  "For  the  defendant";  or,  I  mean  to  say,  whether 
damages  should  be  given  or  not.  They  should  have  only  to 
make  an  assessment,  and  I  think  that  such  a  restriction  in 
the  power  of  the  laymen  would  make  the  system  more  easily 
acceptable  in  countries  where  prejudices  against  the  civil  jury 
may  prevail. 

I  need,  besides,  scarcely  remark  that  something  like  the 
Norwegian  system  is  possible  only  in  countries  where  districts 
of  moderate  extent  are  laid  to  each  court.  The  judges,  being 
judges  for  all  the  country  and  residing  in  the  metropohs,  can 
of  course  not  make  views  all  round  the  provinces  or  countries. 
But  I  think  any  party  should  be  entitled  to  require  a  trial 
by  a  jury  of  twelve  men  in  such  cases  which  are  specially  proper 
to  be  tried  by  a  jury,  as  questions  of  negligence,  personal  in- 
juries, fraudulent  representation,  etc.,  simply  because  in  such 
cases  the  truth  cannot  be  appreciated  better  than  by  laymen,  or, 
as  Lord  Herschell,  certainly  with  full  right  and  as  a  matter 
of  course,  has  said  in  a  letter  to  me,  "There  a  jury  is  the  best 
tribunal."  In  such  cases,  consequently,  the  said  trial  should, 
as  a  rule,  be  not  an  intermediary  act  in  the  lawsuit,  but  it 
should  form  the  main  and  final  proceeding  in  it. 

As  regards  commercial  cases,  our  starting-point  or  our  thesis 
that  the  justice  shall  answer  the  practical  necessity,  brings  us, 
I  think,  thereto,  that  as  a  rule  merchants  should  be  judges, 
or  be  sitting  with  the  presiding  judge  and  have  votes  of  their 
own  at  the  final  trial  of  such  cases;  and  my  reasons  thereto  are: 

I.  That  the  commercial  life  and  practice  are  regulated  by 


76       CONGRESS   OF  LAWYERS  AND   JURISTS 

laws,  for  the  greater  part  unwritten,  which  in  fact  very  few 
judges  know,  and  which  they  scarcely  can  be  able  always  to 
fully  appreciate  when  laid  before  them  in  a  new  case,  because 
these  unwritten  laws,  the  system  of  book-keeping  here  included, 
are  originated  and  developed  out  of  the  wants  of  business,  with 
which  peoi)le  get  fully  acquainted  only  by  living  in  them  through 
years. 

2.  That  these  laws,  fully  known  by  merchants  from  their 
daily  experience  as  they  are,  are  on  the  other  side,  commonly 
very  easily  adapted  by  merchants  to  cases  in  controversy,  and 
that  it  is  thus  a  great  and  unnecessary  waste  of  the  precious 
time  of  the  judge  to  lay  such  work  upon  him,  or,  in  all  events, 
upon  a  number  of  judges  sitting  together. 

In  maritime  cases,  too,  similar  considerations  lead  to  about 
the  same  claim. 

My  starting-point,  or  the  practical  thesis  mentioned  above, 
gives  me  also  reason  to  claim  that  matters  of  an  administrative 
nature  or  equity  cases  should  be  tried  according  to  methods 
appropriate  to  them;  for  example,  by  means  of  affidavits, 
taking  accounts,  etc.  For  determining  entangled  questions  of 
claims  and  counterclaims,  accounts  current,  etc.,  not  falling 
under  some  of  the  sections  above,  special  modes  of  trial  proper 
for  the  purpose  should  be  used. 

Certain  matters  or  cases  (or  parts  of  them),  may  require  to 
be  delivered  to  a  referee,  who  might  be  entitled  to  hold  trials 
at  other  places  than  the  usual  ones,  to  have  inspections  or 
views,  or  to  take  evidence  in  the  regular  way,  and,  on  the  whole, 
to  perform  acts  of  procedure  which  cannot  be  conveniently 
performed  by  the  court  itself,  and  to  do  such  a  work  according 
to  orders  given  by  the  court.  In  other  cases  it  may  be  very 
proper  that  a  judge,  or  such  a  referee,  should  be  assisted  by 
assessors,  having  only  a  deliberate  vote,  because  the  question 
involved,  although  of  a  special  intricacy,  may  be  of  a  nature 
requesting  mainly  a  pure  and  strictly  legal  solution. 

And,  as  the  main  rule,  the  judge  should  be  entitled  at  any 
time,  or  from  time  to  time,  to  order  such  trial  and  such  way  of 


PAPER   OF   HERR   FAHLCRANTZ  77 

determining  issues  of  fact  or  of  law  as  the  justice  of  the  case 
might  claim. 

Here  we  may  pause  a  little  and  take  a  look  back.  I  have 
been  speaking  of  a  system  of  legal  procedure  aiming  to  give  to 
people  threatened  by  or  suffering  wrong  a  due  redress  accord- 
ing to  the  merits  of  the  case,  which  I  consider  as  the  practical 
purpose  of  the  administration  of  justice,  and  I  mean  that  any 
other  purpose  of  that  administration  cannot  rightly  be  given. 

I  have  thereafter  drawn  the  attention  thereto  that  for  such 
a  system  the  very  first  thing  must,  as  a  matter  of  course,  be  to 
have  the  real  facts  of  any  individual  case  laid  open  for  the 
court  giving  the  redress  wanted,  and  I  have  specially  and  some- 
what fully  tried  to  give  a  recollection  of  the  different  methods 
standing  to  our  disposal  for  finding  and  stating  the  truth;  at 
the  same  time,  also  mentioning  the  second  purpose  of  special 
modes  of  trial,  viz,  of  determining  questions  of  law  that  might 
be  mixed  up  with  questions  of  fact,  or  perhaps  might  request 
an  anticipated  solution,  although  appearing  free  from  any  con- 
troversy as  regards  facts. 

We  have  been  speaking  of  evidence,  and  we  can  now  con- 
sider the  question  of  pleadings.  What  the  pleadings  shall  be 
depends  much  upon  what  the  evidence  is. 

In  my  country  there  exists  very  little  of  all  these  different 
modes  of  finding  out  the  real  facts  or  the  truth  of  the  individual 
case.  We  have  not  trial  by  jury,  not  view  ^^syn  og  skm,'^  as 
in  Norway  and  Denmark,  not  the  examination  of  parties  on 
oath,  not  affidavits,  not  interrogatories,  nothing  to  be  compared 
with  the  English  discovery  and  inspection. 

There  exist,  beside  admission  by  some  of  the  parties,  two 
methods  or  means  for  stating  facts : 

I.  Examination  of  witnesses,  and  it  should  be  observed 
there  are  in  Sweden,  excluded  from  the  duty  to  give  evidence, 
all  the  persons  who  may  have  any  interest  in  the  case,  relatives 
to  the  parties  unto  cousins  inclusive,  agents  receiving  a  com- 
mission, legal  servants,  etc.;  that  is  to  say,  that  about  all  are 
excluded  who  could  be  supposed  to  know  the  facts  best.     The 


78       CONGRESS   OF  LAWYERS  AND   JURISTS 

parties  cannot  be  heard  as  witnesses  and  they  are  entitled  to 
conceal  the  truth  about  as  much  as  they  like. 

2.  Our  second  method  for  stating  facts  is  written  documents, 
and  as  a  rule  no  party  is  with  us  bound  to  lay  before  the  court 
any  document  which  seems  unfavorable  to  him. 

I  am  sorry  to  say,  of  all  the  possible  sources  of  the  truth, 
our  Swedish  courts  don't  know  more  than  two,  and  these  two 
are  so  handicapped  that  not  very  much  good  can  come  from 
them.  A  system  like  that,  of  course,  works  badly  and  sadly. 
But  our  judges,  the  most  honest  men  in  the  world,  as  they  are, 
arc  so  perfectly  dominated  by  the  poorness  of  their  own  new 
formahsm  that  they  think  it  can,  on  the  whole,  not  be  other- 
wise, considering  it  as  prudent  and  conservative  not  to  claim 
more. 

What  must  the  pleadings  be  in  a  system  like  the  Swedish 
one?  Nothing  is  prescribed  about  the  contents  of  the  plead- 
ings, nor  about  the  form  in  which  they  should  be  drawn  up, 
and  only  in  the  appeal  courts  the  number  of  pleadings  is  fixed, 
viz,  to  two  from  each  side.  But  in  fact  they  have  grown  to 
means  for  the  parties  to  make  their  stories  of  what  has  hap- 
pened in  the  case.  The  pleadings  are  thus  exhibitions  of  the 
facts  on  which  the  parties  respectively  rely,  interwoven  with 
references  to  documents  or  other  evidence,  and  to  different 
rules  of  the  law  and  to  judgments  earlier  given  in  similar  cases. 
The  idea  is  that,  after  these  pleadings  are  read  in  the  court, 
the  parties  may,  then  or  on  a  later  occasion,  produce  there 
the  witnesses  or  the  documents  with  which  they  might  be  able 
to  prove  the  facts  respectively  rehed  on.  As  in  the  higher 
courts  witnesses  very  seldom  are  allowed  to  be  heard,  the 
pleadings  there  will  mostly  take  the  character  of  a  comment 
on  the  contents  of  the  records,  drawn  uj)  in  the  first  court, 
which  record  also  contains  the  pleadings  delivered  in  that  court. 
In  all  events,  the  pleadings  form  the  very  basis  for  the  judg- 
ment to  be  given,  viz,  as  far  as  the  pleadings  may  be  verified 
later  in  the  proper  way,  i.  e.,  by  competent  witnesses,  by  docu- 
ments, or  by  admission  from  the  other  party. 


PAPER   OF   HERR   FAHLCRANTZ  79 

In  most  parts  of  European  states,  where  the  system  of 
evidence  is  pretty  much  like  ours,  or  at  all  events  has  a  shape 
quite  different  from  the  English  one,  the  use  and  the  position 
of  the  pleadings  is  much  the  same;  and  it  is  so,  even  where, 
as  in  certain  systems,  an  oral  trial,  finishing  the  proceedings, 
is  arranged,  or  if  the  theory  says  that  the  materials  for  the 
judgment  should  be  taken  only  from  that  oral  trial.  The 
reason  is  simply  this,  that  generally  or  very  often  it  must  be 
very  convenient  for  the  judge  to  take  the  materials  for  his 
judgment  in  these  pleadings,  and  that  it  is  rather  unnatural 
to  request  that  the  written  pleadings  should  be  ignored  by  the 
judge,  when  he  has  them  in  his  hands. 

Practically  the  pleadings  in  these  systems  make  for  a  great 
part  the  oral  trial  an  empty  work,  which  is,  therefore,  very  often 
passed  over. 

In  a  system,  again,  as  the  one  which  I  have  spoken  of  first, 
in  which  the  always  governing  question  is  to  find  the  true  facts, 
and  where  special  means  of  stating  them  are  constructed  accord- 
ing to  the  want  of  any  individual  case,  the  meaning  and  the 
object  of  the  pleadings  can  be  one  thing  and  get  naturally 
another  one. 

I  think  the  purpose  of  the  pleadings  should  be,  in  the  first 
place,  simply  to  find  the  issues  which  really  are  in  dispute 
between  the  parties,  and  to  cause  as  soon  as  possible  those 
issues  to  be  solved  in  the  proper  way,  or  in  one  of  the  ways 
mentioned  above. 

In  all  events,  there  would  as  a  rule  be  no  reason  for  the 
parties  when  drawing  up  their  pleadings  to  lay  down  all  the 
particulars,  or  to  tell  all  the  story  of  the  case,  nor  any  reason 
to  mention  the  evidence  or  the  intended  way  of  proving  the 
facts  relied  on.  The  pleadings  should  contain  only  the  sub- 
stance of  the  facts  rehed  upon  by  the  one  or  the  other  party, 
and  the  one  who  answers  should  do  so,  taking  matter  by 
matter.  Only  when  particulars  could  be  needed  for  finding  the 
important  point,  as,  for  example,  for  meeting  fraud  or  wilful 
machinations  of  any  kind,  such  particulars  should  be  stated 


8o       CONGRESS   OF  LAWYERS  AND   JURISTS 

in  the  pleading.  Nothing  should  be  allowed  to  be  illusive, 
and  if  any  pleading  or  written  proceeding  should  seem  to  be 
so,  the  judge  should  be  entitled  to  order  further  and  better 
statement  of  the  nature  of  the  claim  or  of  the  defense,  or  further 
and  better  particulars,  as  the  case  may  be.  But  in  order  to 
avoid  useless  controversy  and  to  keep  the  whole  case  most 
closely  to  the  actual  issues,  there  is  need  at  the  very  outset  of 
the  lawsuit  to  require  the  parties  to  state  the  true  facts,  of  which 
duty  we  have  spoken  before.  In  addition  to  the  pleadings  it  is 
necessary  to  give  the  right  to  the  parties  to  make  interrogatories 
to  be  answered  by  the  opponent  on  oath  or  under  legal  responsi- 
bility along  with  discovery  and  inspection  of  documents,  i.  e.,  an 
unlimited  editio  document  or  um,  about  as  these  things  are  regulated 
in  the  English  system.  And  I  take  the  liberty  to  consider  such  a 
right  of  the  parties,  or  the  exercise  of  that  right  of  theirs,  as  a 
very  part  of  the  pleadings  or  a  necessary  appendix  to  them, 
because  without  that  the  pleadings  must  frequently  be  void  of 
their  proper  effect,  and  illusory.  A  plain  first  result  of  the  rules 
thus  given  will  be,  that  scarcely  any  lawsuit  wants  to  be  far 
entered  into  without  both  parties  knowing  the  important  facts 
and  all  the  documents  belonging  thereto.  It  is,  of  course,  also 
supposed  that  in  the  pleadings  should  be  raised  all  such  matters 
or  legal  grounds  by  reason  of  which  any  action  or  claim  from 
the  opposite  party  would  be  void  or  not  maintainable.  And 
any  breach  against  any  of  those  provisions  should,  when  setting 
the  other  party's  right  in  danger,  be  counteracted  in  a  peremptory 
way,  or  at  all  events  by  imposing  on  the  liable  party  the  costs  for 
enabling  the  other  party  to  get  the  case  set  on  right  footing. 

Having  by  these  means  been  informed  of  the  details  of  the 
cause,  as  far  as  these  details  are  in  the  knowledge  of  the  opponent, 
each  of  the  parties  will  in  most  cases  know  in  advance  what  the 
result  of  a  trial  in  certain  points  is  likely  to  be,  or  he  will  in  all 
events  see  which  points  may  or  ought  to  be  the  object  for  trial 
of  the  one  or  other  kind,  which  is  about  the  same  as  to  say  that 
pleadings  of  the  form  and  the  contents  alluded  to  above  can  be 
expected  to  lead  to  clear  issues  such  as  are  aimed  at. 


PAPER    OF   HERR   FAHLCRANTZ  8i 

But  it  is  even  as  evident  that  such  pleadings,  together  with 
the  above-mentioned  ways  of  pressing  forth  the  essential  facts 
from  both  sides,  must  have  the  effect  of: 

1.  Frequently  causing  admissions  to  be  given,  after  which 
it  would  be  nonsense  to  continue  any  defense,  or  claim,  as  the 
case  may  be; 

2.  Frequently  making  the  parties  aware  of  the  propriety  of 
a  friendly  arrangement;  and 

3.  Frequently  bringing  the  cases  in  such  a  state  that  the 
court  can  dismiss  them  or  give  judgment  without  need  of  further 
proceedings  or  of  a  costly  final  trial  in  an  open  court; 

All  those  being  consequences  of  the  pleadings,  which  un- 
doubtedly are  highly  desirable  from  any  point  of  view.  About 
certain  consequences  of  another  kind  we  will  have  an  oppor- 
tunity to  speak  later. 

Such  a  summary  proceeding  as  in  clause  3  alluded  to  can 
evidently  be  adopted  without  danger,  especially  in  cases  where 
the  plaintiff  seeks  only  to  recover  a  debt  or  liquidated  demand, 
and  in  many  similar  cases,  when  the  defendant  makes  default 
or  when  the  plaintiff  verifies  by  oath  or  otherwise  the  cause  of 
action,  and  provided  the  defendant  cannot  make  it  seem  prob- 
able that  he  has  a  good  defense.  Must,  however,  the  case  go  to 
trial,  the  pleadings,  including  the  steps  mentioned  coincident 
with  them,  discovery,  etc.,  will  always  produce  the  effect,  that 
the  parties  are  able  to  enter  in  that  trial  with  full  knowledge  of 
each  other's  position,  and  that  they  need  not  be  taken  by  sur- 
prise. 

That  is  so  much  as  to  say  that  pleadings,  so  understood  as 
supposed  here  above,  are  the  proper  means  and  the  conditions 
for  getting  the  trial  to  what  it  ought  to  be,  a  fair  and  plain 
exhibition  by  the  parties  or  their  counsel  before  the  eyes  of  the 
judges,  the  jury,  etc.,  of  all  that  he  or  they  ought  to  know  in 
order  to  be  able  to  realize  justice;  and  the  pleadings  so  under- 
stood are  indeed  apt  to  be  the  very  pillars  of  honesty  and  good 
faith  in  the  halls  of  justice. 

I  need  scarcely  say  that  all  the  work  requested  for  pleadings. 


82       CONGRESS   OF  LAWYERS  AND   JURISTS 

etc.,  can  not  and  ought  not  to  be  laid  upon  the  judge.  The 
parties  themselves,  or  experienced  men  having  the  necessary 
judicial  knowledge  and  enjoying  the  confidence  of  the  court, 
should  manage  that  work  between  themselves,  in  such  a  way 
that,  as  a  rule,  a  copy  of  all  pleadings,  etc.,  should  be  filed  in 
the  court,  and  that  whenever  some  party  should  neglect  or  refuse 
to  do  what  he  should  do,  the  opponent  could  immediately  call 
him  before  the  judge  sitting  in  chamber  or  in  open  court  and 
get  his  order.  It  should  also  be  part  of  the  judge's  duty  to 
see  that  the  rights  of  the  parties  against  each  other  should  not 
be  abused,  thus  to  strike  out  frivolous  and  improper  questions, 
to  say  whether  fuller  and  better  answers  should  be  given,  etc. 
If  substitutes  for  the  judge  were  appointed  for  that  work,  it 
should  be  allowed,  however,  in  a  plain  way  to  bring  the  question 
before  the  eyes  of  the  judge,  always,  of  course,  for  getting  an 
immediate  determination. 

If  the  parties  themselves  were  allowed  to  do  all  that  work, 
and  if  they  were  entitled  consequently  to  appear  in  person 
before  the  judge,  it  will  scarcely  have  to  be  apprehended  that — 
as  very  often  complained  of  in  certain  countries — the  judicial 
assistants  of  the  parties  would  show  each  other  too  much  of 
indulgence  with  respect  to  adjournments  during  that  preparatory 
section  of  the  lawsuit. 

On  this  point  I  must  make  a  remark  or  meet  an  objection, 
which  will  be  rather  natural,  especially  from  the  side  of  American 
and  English  jurists,  I  mean  with  respect  to  the  very  notion  of 
trial  and  the  way  in  which  I  have  understood  that  word.  What 
is  trial?  In  old  Rome,  trial  embraced  all  the  proceedings 
before  the  judex,  but  these  proceedings  included  certainly  the 
main  part  of  all  that  may  be  contained  in  evidence  and  plead- 
ings taken  in  a  modem  sense. 

And  in  my  country,  Sweden,  the  pleadings  and  all  that  may 
belong  thereto,  together  with  the  examination  of  witnesses, 
form,  indeed,  the  trial,  but  so  that  the  said  trial  is  spht  into  a 
number  of  hearings  separated  by  adjournments.  All  is  done 
in  open  court  (as  far  as  our  courts  are  open) ;  and  we  have  no 


PAPER    OF    HERR    FAHLCRANTZ  83 

special  trial  in  the  meaning  of  a  final,  oral  exposition  for  the 
judge  of  something  which  has  been  prepared  before;  the  whole 
concern  is  trial.  It  is  about  so  in  many  other  countries,  too, 
and  from  such  a  point  of  view  I  have  had  no  right  or  reason  to 
exclude  anything  of  what  I  have  been  speaking  of,  although  I  am 
quite  aware  that  my  way  of  taking  matters  might  have  puzzled 
somebody.  In  all  events,  and  even  if  trial  were  to  be  taken  only 
in  the  sense  of  a  final  oral  act,  we  must  needs  have  been  talking 
of  evidence  and  pleadings,  produced  earlier,  because  without  so 
doing  the  meaning  and  effect  of  evidence  and  pleadings  produced 
at  that  trial  could  never  have  been  duly  understood. 

Now,  I  think  if  we  have  before  us  a  legal  system  aiming  at 
a  practical  relief  to  be  given  according  to  the  justice  of  every 
individual  case;  if  we  have  before  us  a  strong  opinion  prevailing 
among  the  judges  and  in  the  people  that  the  truth  must,  without 
any  weakness  or  restriction,  be  revealed  before  the  courts ;  and 
if  we  have  at  our  disposal  proper  means  to  execute  that  idea — 
then  the  preferable  method  to  regulate  pleadings  is  to  do  it  in 
such  a  way  that 

In  an  early  period  of  the  lawsuit  as  many  cases  as  possible 
might  be  brought  to  an  end  by  admission  or  brought  to  a 
friendly  arrangement  between  the  parties,  and  that  as  many 
cases  as  possible  might  be  brought  into  ripeness  for  their  bring- 
ing to  an  end  by  judgment,  without  any  formal  trial  in  the 
specific  meaning  of  that  word ;  and 

That,  if  such  a  trial  must  take  place,  it  can  be  performed  in 
a  fair  way. 

We  have  seen  how  that  can  be  done,  by  bringing  the  prepara- 
tory acts  pertaining  to  evidence,  interrogatories,  discovery  and 
inspection  in  connection  with  the  pleadings  or  simply  by  having 
the  parties  to  reveal  the  truth  of  the  cause  from  the  very  beginning 
of  it,  as  far  as  the  truth  is  known  to  them,  in  the  same  time  as 
they  in  their  pleadings,  which  of  course  are  not  given  on  oath, 
should  try  to  take  care  of  their  interest  as  parties. 

And  the  stronger  the  claims  for  truth  and  honesty  from  an 
impartial  or  public  point  of  view  are  formulated  and  performed. 


84       CONGRESS   OF   LAWYERS  AND   JURISTS 

the  better  becomes  in  every  respect  the  result — I  mean  the  result 
of  the  administration  of  justice  as  a  practical  thing,  i.  e.,  as  a 
means  of  helping  them  who  are  threatened  by  wrong  and  of 
helping  them  effectually  and  as  soon  and  with  as  small  costs  for 
them  as  possible. 

Let  us  now  consider  trial  as  a  final  oral  exhibition  of  the 
case  before  the  judge  in  open  court,  and  let  us  look  for  which 
position  and  significance  pleadings  and  evidence  should  prop- 
erly have  in  such  a  trial. 

In  a  system  of  the  kind  which  I  have  ventured  to  consider 
as  the  preferable  one,  and  in  which  pleadings  have  their  first 
object  in  preparing  issues  for  trial,  the  pleadings  have  indeed 
very  little  to  do  at  the  trial;  they  have  in  that  moment  done 
what  they  should  do.  But  I  think  they  can  be  of  use  now  in 
a  secondary  way  or  so  that  it  can  be  a  good  thing  for  the  judge 
to  have  copies  of  them  in  his  hands  as  a  support  for  his  memory 
regarding  the  matters  in  question,  in  the  same  way  as,  of  course, 
the  parties,  too,  or  their  counsel,  derive  a  good  assistance  from 
similar  copies  when  orally  explaining  the  cause. 

Also  as  regards  the  object  of  pleadings  mentioned  above, 
to  make  each  party  acquainted  with  the  grounds  rehed  on  by 
his  opponent,  the  pleadings  ought  at  the  trial  to  have  produced 
their  effect,  and,  of  course,  they  can  in  that  respect  make  use 
of  showing  whether  the  parties  have  duly  performed  such  a 
duty  or  not. 

But  supposing  now,  for  a  moment,  that  the  parties  had 
drawn  up  pleadings  of  another  nature  than  the  one  I  have  meant 
should  pertain  to  the  preferable  system,  thus  pleadings  contain- 
ing the  whole  stories  of  the  parties'  case  respectively,  etc. 
Whether  such  pleadings  or  certain  parts  of  them  should  be  read 
at  the  final  trial  or  not  is  a  secondary  question  subordinated 
to  the  one,  whether  on  the  whole  a  trial  in  open  court  may  be 
wanted  in  such  circumstances.  If  the  case  is  to  be  tried  by 
one  judge  or  a  small  group  of  judges  sitting  without  a  jury  or 
assessors,  the  judges  themselves  could  as  properly  read  the 
papers  at  home.     If  many  persons  are  partaking  in  the  decision 


PAPER   OF   HERR   FAHLCRANTZ  85 

to  be  given,  time  might  be  saved  by  bringing  the  cause  before 
them  all  through  one  performance,  but  the  question  raised 
depends  simply  upon  whether  reading  the  papers  or  free  speak- 
ing of  the  parties  for  explaining  the  circumstances  of  the  cause 
may  be  more  apt  to  keep  up  the  interest  and  the  ears  of  the 
judges,  but  is  scarcely  of  any  principal  importance.  In  all 
events,  the  parties  get  here  a  double  work.  Only  in  a  system 
as  the  one  recommended  above  no  unnecessary  duplicity  takes 
place,  and  we  return  to  that  system.  As  said  before,  no  plead- 
ings are  here  to  be  read.  But  in  the  system  now  in  question 
pleadings  could  be  taken  as  the  oral  way  of  the  parties  or  their 
counsel  of  explaining  the  cause  to  the  court.  And  I  think  then, 
indeed,  that  especially  in  civil  actions  it  is  a  good  thing  if  the 
introductory  part  of  the  proceedings,  before  the  evidence  is 
produced,  takes  the  form  to  a  certain  extent  more  of  a  discussion 
between  judge  and  counsel,  or  of  a  questioning  from  the  judge's 
side  and  giving  informations  about  the  real  state  of  the  cause 
from  the  counsel's  side,  than  of  a  continual  speaking  of  the 
parties  or  their  counsel — because  the  first  thing  is,  of  course, 
now,  to  get  the  judge  informed  of  the  case;  and  by  questioning 
now  and  then  he  is  able  in  the  best  way  to  get  the  points  clear 
which  he  wants  for  seeing  the  matters  properly.  The  method 
so  much  in  use  in  England,  of  giving  the  court  information  of 
the  facts  by  laying  before  it  drawings  or  constructions  repre- 
senting houses,  railway  lines,  and  other  objects  for  controversy 
or  such  objects  themselves,  when  they  can  be  brought  before 
the  court,  is  a  part  of  the  pleading  in  the  meaning  which  I  have 
now  before  my  mind,  and  certainly  one  very  much  to  be  recom- 
mended. But  after  production  of  the  evidence,  and  when  it, 
for  each  party,  is  about  to  impress  the  court  with  their,  so  to 
say,  partial  reasons  and  arguments,  it  seems  again  right  that 
each  party  or  his  counsel  should  be  allowed,  uninterrupted  and 
fully  in  his  own  way,  to  make  his  address  to  the  court. 

In  this  place  we  have  to  take  into  consideration  a  special 
consequence  of  the  system  proposed  above  as  the  preferable 
one.     Supposed  that  an  assessment  of  the  value  of  an  object 


86       CONGRESS   OF   LAWYERS  AND   JURISTS 

concerned  in  the  case  has  taken  place  in  an  earlier  period  of  the 
lawsuit,  the  question  of  that  value  is  then  already  determined, 
and  enters  consequently  not  among  the  matters  that  are  to  be 
tried  at  the  final  trial.  The  same  result  will  follow,  if  in  another 
way  some  special  question  of  fact,  involved  in  the  case,  has  been 
brought  to  an  anticipated  solution;  and  in  all  such  events  the 
object  of  the  final  trial  has  been  limited  in  a  manner  which 
makes  the  said  final  trial  easier  and  less  voluminous,  even  if  it 
should  be  so,  that  the  legal  importance  in  the  cause  of  such 
earlier  determination  may  be  fixed  at  first  through  the  final 
judgment  to  be  given  at  the  end  of  that  trial.  The  existence 
of  all  the  different  modes  of  stating  facts  or  of  determining  even 
issues  of  law,  that  we  have  taken  as  the  inventory,  being  at  the 
disposal  of  the  judge,  makes  such  an  arrangement  possible  and 
easy,  and  I  need  scarcely  draw  your  attention  to  the  importance 
thereof  for  the  prosperous  effect  of  the  system  as  a  whole.  Nor 
need  I  remark  that  the  judge,  when  determining  the  main  ques- 
tion, which  may  be  brought  into  trial,  is,  of  course,  entitled  to 
deliver  a  question  of  assessment  or  other  questions  of  fact  to  be 
tried  afterwards  in  a  manner  proper  for  such  a  purpose,  and 
thus  entitled  in  a  second  way  to  restrict  the  immediate  object  of 
the  trial. 

It  is  easy  to  understand,  that  for  many  jurists,  and  especially 
for  those  who  belong  to  the  German  school,  a  great  and  hesitat- 
ing question  will  be  this:  How  decisions  or  orders  of  the  judge 
fixing  a  certain  mode  of  trial  may  duly  be  appealed  against.  My 
answer  is  this:  The  proper  way  of  choosing  the  proper  mode 
of  trial  is,  or  shall  principally  be,  the  sake  of  the  parties  them- 
selves, and  thus  be  a  matter  which,  as  a  rule,  shall  be  no  object 
for  an  appeal.  The  best  guidance  as  to  the  way  I  have  in  my 
mind  when  saying  so  is  contained  in  an  ordinary  manner  of 
procedure  used  formerly  by  our  Swedish  great  judges,  viz,  in 
certain  circumstances  to  order  parties  to  agree;  and  such 
guidance  is  as  well  contained  in  the  regular  way  used  in  old 
Rome  by  the  prcetor  giving  in  certain  circumstances  orders  of 
about  the  same  effect  as  hinted  at  just  now.     The  parties  should 


PAPER   OF   HERR   FAHLCRANTZ  87 

thus  be  obliged  both  to  join  about  the  different  questions  to  be 
put  to  trial  and  the  mode  of  trial,  the  judge  only,  or  principally, 
to  give  his  assistance  as  a  mediator  between  them  in  case  of  need. 
That  might  seem  as  a  slight  advice.  But  in  a  system  which,  as 
the  proposed  one,  should  in  all  respects  exclude  or  subdue  mala 
-fides  and  any  kind  of  wilfulness  in  the  legal  machinery  or  in  the 
use  of  it,  the  choice  here  alluded  to  should  be  considered  as 
something  from  which  no  party  would  have  to  draw  any  advan- 
tage against  the  other — and  the  English  and  American  systems 
give  us  proofs  of  similar  principles  being  still  in  our  days  able  to 
produce  their  due  effect. 

As  regards  the  result  of  such  an  anticipated  trial  a  new 
trial  should,  in  extraordinary  circumstances,  be  allowed. 

I  beg  to  be  allowed  in  this  connection  to  make  another  remark. 
A  most  important  consequence  of  the  system  recommended 
above,  or  indeed  the  very  substantial  character  of  it,  is  that  a 
great  deal  of  questions  regarding  facts  are  to  be  determined  by 
laymen.  The  simple  reasons  why  it  should  be  done  so,  are  that 
the  studies  of  the  judge  do  not  give  him  any  superiority  over  a 
prudent  layman  as  regards  saying  whether  a  horse  is  black  or 
white,  or  what  may  have  happened  in  a  case,  and  that  it  is 
simply  unnatural  to  make  statements  of  facts  depending  upon 
a  special  judicial  or  technical  way  of  looking  upon  matters,  and 
also  that  the  only  way  of  preventing  administration  of  justice 
from  degenerating  is  in  all  possible  points  to  have  it  formed 
according  to  the  needs  of  the  practical  reahty  as  it  is  felt  and 
seen  by  the  people  themselves. 

That  the  people  as  a  nation  will  be  in  danger  of  losing  the 
necessary  control  over  itself,  if  it  dehvers  over  to  others  the 
power  it  can  properly  exercise  itself  with  respect  to  practical 
justice,  is  a  reason  of  its  own,  which  would  not  be  overlooked. 
And  I  venture  to  add:  It  should  neither  be  overlooked,  that 
only  with  a  system,  which,  as  the  proposed  one,  draws  fixed 
limits  between  questions  of  law  and  questions  of  fact,  a  due 
basis  can  be  laid  for  jurisprudence  as  a  practical  science. 

Having  considered  these  points,  we  may  put  before  us  the 


88       CONGRESS   OF  LAWYERS   AND   JURISTS 

question  of  evidence  at  the  trial  taken  as  the  finishing  act  of 
the  lawsuit.  There  should  be  produced  at  that  trial  all  that 
judge  and  laymen  must  know  in  the  matters  now  remaining  for 
determination.  A  big  book  could,  of  course,  be  written  on  the 
questions  here  involved. 

But  I  think  it  would  be  the  best  way,  most  shortly,  to  look 
upon  the  matter  from  a  certain  point  of  view,  which  seems  to 
me  to  be  one  of  a  specially  great  practical  importance,  and  that 
point  of  view  is,  I  think,  contained  in  this  question:  How  to 
balance  the  relation  between  party  and  advocate  as  regards 
trial  in  open  court. 

The  parties  are,  as  a  rule,  and,  as  observed  earlier,  the  most 
important  sources  for  finding  out  the  truth ;  but  commonly  the 
parties  like  not — even  if  they  be  allowed— to  go  before  the 
court  themselves,  but  they  arrange  that  advocates  appear  and 
speak  for  them;  and  so — according  to  the  common  way  of 
taking  matters  on  the  European  Continent — the  best  sources 
for  finding  out  the  truth  at  the  trial  are  lost.  In  my  country,  and 
I  think  I  can  say  in  most  of  the  states  of  the  European  Continent, 
the  greatest  inconvenience  and  awkwardness  of  the  present 
state  of  legal  matters  is  the  idea  that  the  advocate  should  in  all 
make  up  for  the  party;  he  shall  state  the  facts  in  his  own  way, 
and  say  what  part  of  these  facts  or  of  documents  should  be  laid 
before  the  court  and  which  withheld;  he  shall  say  what  is  true 
of  the  opponent's  allegations,  and  it  depends  upon  his  firmness 
of  mind  to  say  how  much  of  these  allegations  is  false  and  how 
many  of  the  documents  produced  by  the  opponent  are  false  or 
worthless.  If  he  is  very  firm  he  denies,  of  course,  all;  and,  of 
course,  when  he  must  speak  positively  for  his  client  he  should 
prudently  moderate  the  due  portion  of  truth.  Happy  he  is  if 
he  knows  nothing  of  the  case,  because  then  he  can  with  rela- 
tively good  conscience  deny  all  the  truth,  and  it  is  from  that 
point  of  view,  when  an  advocate  is  pleading  for  a  defendant, 
nothing  to  complain,  if  he  has  got  the  least  portion  of  instructions 
from  him!  To  "make  soup  out  of  a  nail" — as  we  say  in 
Sweden — becomes  in  these  circumstances  the  flower  of  his  art. 


PAPER   OF   HERR   FAHLCRANTZ  89 

But  I  say  such  a  situation  of  matters  is  unnatural  and 
wrong.  The  advocate  should,  I  mean,  have  nothing  to  do  with 
stating  the  facts.  The  party  should,  before  the  case  comes 
to  trial  in  open  court,  have  declared  on  oath  which  documents, 
notices,  or  material  of  any  kind  he  has  in  his  possession,  or  has 
had,  and  which  he  knows  to  be  in  anybody  else's  possession,  of 
such  a  nature  that  they  can  be  relevant  in  the  cause,  and  all 
such  documents  should  also  have  been  dehvered  to  the  inspec- 
tion of  the  other  party. 

Each  party  shall  also  have  answered  on  oath  to  written 
interrogatories  regarding  the  circumstances  in  the  cause — all 
in  a  way  as  earlier  alluded  to. 

Well,  if  all  that  is  done,  the  result  appears  in  the  trial  in 
the  way  in  which  counsel  are  going  to  mention  the  facts  of  the 
case,  and  an  examination  of  the  parties  in  open  court  or  at  the 
trial  will  very  often  not  be  wanted. 

But  if  it  should  seem  to  be  good  for  the  party  himself  to 
explain  the  facts  of  his  case  before  the  court,  or  if  the  opponent 
should  want  him  to  be  examined,  he  should  be  examined  and 
cross-examined,  as  the  case  may  be,  in  the  same  way  as  other 
witnesses. 

The  position  of  the  advocate,  when  delivered  from  duties 
resting  upon  parties  in  their  capacity  of  witnesses,  becomes  in 
this  way  a  far  higher  one  than  else;  he  is,  as  regards  trial,  the 
learned,  benevolent,  and  eloquent  mediator  between  facts  and 
law,  making  it  possible  for  the  judge  to  see  the  facts  rightly, 
and  helping  the  party  to  get  the  law  as  favorably  for  him  as 
possible  understood  and  apphed  by  the  court;  and  I  think 
that  should  reasonably  be  the  mission  of  an  advocate.' 

The  parties,  if  wanted,  thus  to  be  present  at  the  trial,  first 
of  all  for  the  sake  of  evidence,  the  advocates  for  the  sake  of 
pleading — that  is,  indeed,  the  very  first  principle  as  regards  trial, 
taken  in  the  restricted  meaning  of  the  word.     But  as  the  case  and 

^  If  matters  are  seen  so  it  will  not  be  difficult  to  understand  why,  in  England, 
there  exists,  and  that  it  properly  everywhere  should  exist,  a  second  class  of 
judicial  assistants  for  the  parties,  viz,  for  all  the  preparatory  steps  before  trial 
and  for  regulating  private  business  of  different  kinds. 


90       CONGRESS   OF  LAWYERS  AND   JURISTS 

the  interest  involved  therein  belong  to  the  parties  and  to  nobody 
else,  they  must  be  allowed  themselves  to  defend  that  case,  if  they 
wish  to  do  so ;  and  if  they  choose  then  to  act  alone,  they  have  to 
represent  at  the  same  time  evidence  and  pleading,  both  to  be 
kept  up  in  their  ordinary  character.  If  that  principal  rule  is  ad- 
hered to  and  adapted  in  its  consequences,  the  guidance  wanted 
and  the  way  of  regulating  the  whole  trial,  even  in  other  points 
than  the  ones  mentioned  before,  are  obvious,  and  I  might  there- 
fore be  entitled  not  to  go  into  further  details. 

The  system  I  demand  might  seem  hard.  Hard  against 
whom?  Hard  it  will  be  for  mendacity,  for  unrighteousness, 
for  mala  fides,  for  old  prejudices.  Mild  it  will  be  for  the  one 
who  is  suffering  wrong,  and  a  basis  it  will  be  for  equity  in  its 
highest  meaning,  for  public  and  private  honesty,  for  bona  fides, 
and  mutual  confidence  among  men — and  what  that  means  in 
the  commercial  life  and  in  all  other  intercourse  between  private 
individuals,  as  between  nations,  I  need  not  explain  here.  But 
such  a  system  is  also  a  condition  for  keeping  up  this  manliness 
of  characters,  which  makes  a  people  strong,  and  which  manhness 
is  wanted  alike  in  peace  as  in  the  cruel  battles  for  national 
existence. 

Somebody  will  say,  perhaps,  that  I  claim  too  much  from 
pleadings  and  evidence.  No;  it  is  not  too  much.  They  are 
apt  to  produce  such  effects  as  alluded  to  above,  and  that  is  to 
be  learned  from  a  comparative  study  of  actual  systems  as  well 
as  from  the  history  of  legal  institutions. 

But  if  it  be  so,  it  must  indeed  be  the  first  duty  for  statesmen 
to  regulate  them  in  such  a  way  that  those  effects  may  be  produced 
— because  it  should  never  be  forgotten  that  administration  of 
justice  is  a  practical  thing,  and  a  thing  upon  which  the  firmness 
and  fate  of  kingdoms  and  republics  depend.     [Applause.] 

The  President: 

After  this  interesting  paper  from  Judge  Fahlcrantz  we 
are  now  to  have  a  discussion  of  the  subject,  to  be  opened  by 
Judge  Adolf  Hartmann  of  Berlin. 


DR.    HARTMANN  91 

Dr.  Adolf  Hartmann,  Judge  in  the  Konigliches 
Land-Gericht,  Berlin,  Delegate-at-large : 

Mr.  President,  Ladies  and  Gentlemen:  Let  me  offer  some 
general  remarks,  beforehand,  saying  that  I  agree  in  a  general 
way  with  the  ideas  pointed  out  by  Mr.  Fahlcrantz. 

It  is  twenty-five  years  since  the  German  code  of  civil  procedure 
was  enacted.  This  code  was  first  looked  at  very  much  askance 
in  Germany,  the  ideas  advanced  therein  were  too  new;  but 
now  it  has  stood  its  own,  and  the  new  German  civil  code  is  in 
harmony  with  the  code  of  civil  procedure.  There  is  very  much 
in  common  now,  in  respect  to  civil  trials,  between  England  and 
America  on  the  one  hand,  and  Continental  Europe  on  the  other. 
Everywhere  there  is  to  a  greater  or  less  extent  pubhcity  of  trial 
and  the  principle  of  oral  pleading,  so  far  as  necessary  for  pub- 
licity. Everywhere  adjective  law  has  changed,  to  say  so,  in 
importance,  when  compared  with  substantive  law.  The  prin- 
ciple prevails  in  modern  science  throughout  that  where  there 
is  a  substantive  right  there  must  be  a  remedy.  Modern  thought 
has  brought  forward  more  and  more  the  high  ideal  that  the  best 
results  are  brought  about  by  the  freedom  which  flows  from  the 
spread  of  education  and  the  development  of  science.  There 
is  in  this  idea  very  much  of  optimism,  often  looked  at  with 
skepticism  on  the  part  of  legislators — an  optimism  more  com- 
mon now  than  in  former  times.  (This  optimism,  for  instance, 
was  prevaihng  in  Germany  when  all  citizens  got  equal  political 
rights.) 

This  optimism,  the  high  ideal,  that  by  freedom  guarded  by 
pubhcity  justice  is  best  administered  in  every  way,  pervades  the 
German  code  of  civil  procedure,  excepting  a  few  instances  of  a 
historical  nature.  In  connection  with  this  spirit  of  freedom 
you  will  find  generally  a  spirit  of  simplicity  of  proceeding  I 
think  not  yet  surpassed.  I  think  we  all  agree  with  Mr.  Fahl- 
crantz in  the  general  tendency  of  his  paper  in  respect  to  the 
ascertainment  of  the  truth  in  trials;  but  as  truth  in  civil  trials 
oftentimes  must  be  conditional,  it  might  be  better  to  use  the 


92       CONGRESS   OF  LAWYERS  AND   JURISTS 

expression,  "the  merits  of  the  case."  The  saying,  where  there 
is  a  substantial  right  there  must  be  a  remedy,  is  in  some  way 
the  same  as  saying,  the  judge  shall  go  straightforward,  so  far 
as  possible,  to  the  merits  of  the  case.  The  German  code,  with 
this  high,  optimistic  ideal,  has  freed  the  judge  so  as  to  enable 
him  to  do  so  best.  How  great  the  freedom  is,  I  wish  to  set 
before  you  in  a  few  instances.  It  is  a  good  principle  to  compel 
the  plaintiff  to  adhere  to  the  main  statements  relied  upon  in  his 
pleading,  and  in  former  times  no  change  of  the  main  statement 
was  allowed;  but  the  judge  was  required  to  give  judgment 
against  the  plaintiff  changing  his  action,  leaving  him  free  to 
bring  in  a  new  one.  Now,  with  us  the  judge  may  allow  every 
change  of  action,  even  without  the  consent  of  the  defendant, 
whenever  he  thinks  it  in  furtherance  of  justice.  The  judge  is 
free  to  adjourn  the  proceeding  after  pleading,  even  after  evi- 
dence, to  this  end,  that  the  one  party  or  the  other,  or  both  may 
amend.  He  may  adjourn  as  often  as  he  thinks  fit.  The  code 
has,  with  one  exception,  done  away  with  all  rules  of  evidence. 
There  is,  for  instance,  no  hearsay  rule  at  all.  Moreover,  the  judge 
may  at  times  dispense  with  all  evidence  if  he  sees  clearly  the 
merits  of  the  case  from  the  pleadings  of  the  parties,  and  the 
answers  to  questions  put  by  him.  When  there  is  a  damage  suit 
the  judge  may,  without  evidence,  state  whether  the  facts  relied 
on  amounted  to  an  injury,  and  need  give  no  reasons  for  the 
statement. 

I  beg  here  to  call  attention  that  in  Continental  Europe,  at 
least  in  Germany  and  France,  there  is  in  civil  proceedings 
neither  jury,  neither  referee,  nor  master  in  chancery.  We 
learned  just  now  that  in  Norway  there  is  a  board  of  views,  very 
similar,  I  think,  to  a  referee.  This,  I  think,  is  a  rare  case  in 
Continental  Europe.  In  Germany  one  may  sometimes  observe 
that  able  experts  express  their  opinions  to  aid  the  judge,  but 
wanting  authority  with  the  public.  Apart  from  such  cases 
the  judges  alone  in  Germany  must  bear  the  burden  and  respon- 
sibility of  deciding  the  facts  upon  the  evidence.  No  referee,  no 
jury  is  there  to  share  the  burden  with  them.     There  is  a  high 


DR.    HARTMANN  93 

ideal  presented  by  the  code  to  the  judge,  which  contemplates, 
one  might  almost  say,  that  the  mental  power  of  judges  is  inex- 
haustible. 

If  a  man  may  be  compelled  by  law  to  answer  an  action  duly 
served,  why  should  he  not  be  compelled  to  give  answer  under 
oath  ?  It  is  well  understood  by  lawyers,  as  well  in  England  and 
America  as  in  Continental  Europe,  that  a  party  never  may  be 
compelled  by  law  to  disclose  all  he  knows  about  the  case,  and 
so  a  party,  compelled  to  answer  a  distinct  question  under  oath, 
must  have  a  right  to  be  protected  by  the  judge  against  irrelevant 
or  improper  questions.  But,  now,  why  should  not  a  party 
answering  a  distinct  averment  under  oath  give  full  evidence 
under  all  circumstances,  as  required  by  the  German  code? 
This  is  the  one  exception  of  freedom  of  the  judges  in  respect 
to  evidence  I  have  referred  to.  A  legislator  may  be  full  of  high 
modern  ideas,  and  yet  be  influenced  by  historical  considerations. 

Now,  if  we  agree  about  the  main  principles  I  have  referred 
to,  then  it  is  possible  to  compare  the  English  and  American 
system  with  the'system  of  Continental  Europe,  and  by  comparison 
to  answer  the  question  which  system  better  enables  the  judges 
to  reach  the  merits  of  the  case.  Indeed,  one  may  fairly  say, 
an  able  man  may  accomplish  more  even  with  a  poor  method 
than  others  could  by  a  better  method.  Nevertheless,  one 
method  may  be  preferable  to  another,  and,  in  the  long  run, 
produce  better  results. 

The  judge  in  England  and  America  is  less  burdened  than  in 
Continental  Europe  in  this  respect,  because  he  is  relieved  from 
determining  the  facts  in  a  case.  I  think  it  would  not  lessen  the 
freedom  of  the  German  judge  if  he  were  allowed  to  avail  himself 
of  a  board  of  view,  or  a  referee,  or  a  master  in  chancery,  in  cases 
of  great  complexity  of  matters  of  fact.  If  it  were  possible  to 
make  popular  throughout  Continental  Europe  these  institutions, 
and  when  the  German  law  of  oath  of  a  party  will  have  been 
changed  in  the  way  suggested  just  now,  then,  it  would  seem,  that 
the  German  method  of  procedure  would  be  the  preferable, 
for  I  dare  say  if  all  the  ideas  put  forward  by  Mr.  Fahlcrantz 


94       CONGRESS   OF  LAWYERS   AND   JURISTS 

should  be  enacted  in  Sweden,  then  this  Swedish  code,  to  a  very 
large  extent,  would  be  the  German  code.  I  would  not  express 
an  opinion  as  to  whether  in  Germany  the  rights  of  the  party 
are  practically  at  the  disposal  of  the  counsel.  In  this  respect 
perhaps  the  ideas  of  Mr.  Fahlcrantz  are  not  congruent  with 
the  German  law. 

If  I  am  not  wrong,  the  method  of  proceeding  in  cases  of  law 
extended  to  a  certain  degree  its  influence  to  the  method  in  cases 
of  equity.  Now,  I  have  already  said  that  modern  thought  has 
brought  forward  more  and  more  the  high  ideal  that  the  best 
results  are  brought  about  by  the  freedom  which  comes  from 
the  spread  of  education  and  the  development  of  science.  But 
this  would  not  mean  that  where  there  is  a  jury  the  law  may 
dispense  with  rules  of  evidence — for  instance,  with  the  hearsay 
rule.  I  beg  to  mention  that  learned  men  have  realized  that  all 
the  English  law  of  evidence  rests  upon  and  has  been  developed 
in  connection  with  the  jury  system.  The  English  law  of  evidence 
is  apt,  if  I  may  say  so,  to  control  the  thought  and  action  of  the 
jury.  A  higher  legal  education  and  training  and  greater  expe- 
rience are  necessary  when  there  are  no  rules  of  evidence.  I 
understand  that  under  the  EngHsh  system  you  may  not  bring 
together  again  the  same  jur}^,  after  the  trial  has  been  adjourned, 
while  the  same  judge  is  likely  to  remain  on  the  bench.  It  is 
possible  to  withdraw  a  juror  or  discharge  a  jury,  but  doing  so 
may  hurt  the  feehngs  of  one  party  or  the  other.  And,  where 
there  is  a  jury,  the  judge,  while  endeavoring  to  reach  the  merits 
of  the  case,  may  not  avail  himself  of  the  right  to  adjourn  the 
trial. 

When  considering  the  development  of  civil  procedure  in 
Continental  Europe,  one  must  remember  that  the  changing  the 
method  of  civil  trial  was,  at  the  time  of  Napoleon  I,  in  France, 
a  political  issue,  and  was  afterwards,  in  the  history  of  the  German 
unity,  a  political  issue.  In  France  and  in  Germany  the  states- 
men agreed  in  respect  to  the  main  principles  throughout  with  the 
lawyers  drafting  the  codes.  The  method  of  civil  procedure  in 
Continental  Europe  developed   along  different  lines  from  the 


PROFESSOR    NERINCX  95 

English  method.  In  Continental  Europe,  generally  speaking, 
since  the  Middle  Ages,  there  was  never  more  than  one  form  of 
action,  and  a  form  very  simple  in  itself.  Civil  trials  in  Continental 
Europe  at  the  time  of  Napoleon  may  have  been  conducted  with 
less  freedom  than  in  England  and  America,  but  in  times  of 
general  political  changes  the  method  was  improved  by  great 
statesmen  to  a  very  high  degree.  The  modern  method  of  Con- 
tinental Europe  does  not  mean  that  there  has  arrived  in  Germany 
in  respect  to  civil  procedure  the  millennium,  the  golden  age. 
So,  in  my  opinion,  if  all  the  ideas  pointed  out  by  Mr.  Fahl- 
CRANTZ  were  enacted,  even  far  better  in  many  particulars  than 
the  German  code,  the  golden  age  would  not  be  here.  But, 
nevertheless,  the  German  method  enables  the  judge  in  a  very 
high  degree  to  discover  the  merits  of  the  case.     [Applause.] 

The  President: 

I  hope  our  friends  from  abroad  will  understand  that  we  do 
have  in  this  country  some  halls  with  better  acoustic  properties 
than  this  one.  This  hall  evidently  was  designed  for  this  great 
organ,  which  alone  can  be  heard. 

We  have  also  this  morning  to  be  favored  with  another  dis- 
cussion, by  Mr.  Alfred  Nerincx,  Professor  of  Law  in  the 
University  of  Lou  vain,  Belgium. 

Professor  Alfred  Nerincx,  LL.D.,  Delegate  from 
the  Faculty  of  Law  of  the  University  of  Louvain, 
Belgium : 

Mr.  President,  Ladies  and  Gentlemen:  I  first  wish  to 
express  the  very  deep  sense  of  obhgation  under  which  I  am  to 
this  Congress,  not  only  for  inviting  me  to  speak  for  a  few  minutes, 
but  for  adding  to  that  honor  the  greater  honor  of  making  a 
young  man  a  vice-president  of  the  Universal  Congress  of  Law- 
yers and  Jurists. 

If  I  have  well  understood  what  Mr.  Fahlcrantz  wants, 
I  think  he  proposes: 

That  the  pleadings  should  be  prepared  in  the  form  of  affi- 


96       CONGRESS   OF  LAWYERS  AND   JURISTS 

davits  based  upon  statements  or  interrogatories  sworn  to  by  the 
parties; 

To  have  the  parties  make,  if  necessary,  a  new  sworn  state- 
ment of  facts  in  court; 

To  have  some  kind  of  civil  jury  to  pass  a  verdict  upon  the 
questions  of  fact; 

To  have  counsel  merely  to  argue  the  point  of  law  before  the 
judge; 

To  have  the  judge  to  be  bound  by  the  verdict  on  facts,  and 
to  give  a  legal  opinion  only. 

That  system  theoretically  seems  very  fine.  I  beg  leave  to 
disagree  on  some  points,  and  will  try  to  explain,  as  briefly  as  I 
can,  the  reasons  drawn  from  practical  experience,  for  which  I 
cannot  agree  with  Mr.  Fahlcrantz.  First,  I  beg  your  pardon 
in  stating  it  so  frankly  in  this  country,  that  I  do  not  believe  in 
civil  jur}'  trials.  I  do  not  believe  in  it  first  of  all  on  account  of 
the  difficulty  of  convening  a  good  jury  in  civil  cases. 

The  duty  of  a  jury,  if  you  require  it  in  all  civil  cases,  is  likely 
to  grow  so  onerous  to  the  community  that  you  cannot  reasonably 
expect  men  of  high  standing  in  the  business  world,  men  of 
ability,  whose  time  is  probably  very  much  taken  up  by  their 
own  business,  to  come  and  give  away  every  month  one  or  several 
days,  maybe,  to  the  trial  of  civil  cases.  If  you  do  not  get  these 
men  you  get  men  of  a  lower  standard,  whose  judgment  you  can- 
not claim  to  be  enlightened,  to  be  the  judgment  or  opinion  of 
educated  men,  and  then,  I  am  quite  sure,  that  most  lawyers 
would  rather  go  to  a  judge  than  to  such  a  jury.  Moreover,  at 
this  time  in  most  of  the  countries  of  America  life  is  compli- 
cated, and  I  do  not  believe  that  a  man  taken  from  his  natural 
business  would  be  competent  to  give  an  expert  opinion  on  a 
question  of  some  other  business.  If  he  knows  railroading  or 
the  grocery  business  it  does  not  follow  that  he  knows  the 
banking  business  or  any  other  business.  I  do  not  believe  that 
a  civil  jury  system  is  a  sounder  or  better  system  than  one  in 
which  cases  are  brought  before  a  good,  honest,  and  trained 
judge.     You  have  proofs  enough  of  that  in  America,  and  I  will 


PROFESSOR    NERINCX  97 


not  speak  upon  it.  You  know  that  in  England  a  distinguished 
scientist  wrote,  not  very  long  ago,  after  explaining  how  the  jury 
system  had  grown  in  England,  "Indeed,  no  matter  how  the 
truth  may  affect  the  feehngs  of  those  who  believe  in  the  system, 
I  believe  the  jury  system  is  itself  on  trial  to-day,  and  there  is 
every  indication  that  the  verdict  of  pubHc  opinion  is  going 
against  it."  In  France  or  Belgium  we  never  have  had  any- 
thing to  do  with  a  civil  jury,  and  there  is  an  illustration  which 
points,  in  my  opinion,  to  an  error  in  the  ideas  of  Mr.  Fahl- 
CRANTZ,  if  he  will  allow  me  to  say  so.  We  have  in  France  and 
Belgium  commercial  courts  that  are  alongside  of  the  civil  courts. 
They  are  constituted  by  three  judges;  they  are  judges,  but  they 
are  business  men  elected  for  a  term  of  years  by  their  business 
community.  They  sit  as  judges,  but  it  was  found  necessary, 
after  instituting  commercial  courts,  to  add  to  each  of  the  com- 
mercial courts  a  la^^er  as  registrar,  who  must  needs  have 
been  a  practicing  lawyer,  appointed  for  the  purpose  of  prevent- 
ing the  business  judges  going  astray  on  questions  of  law;  and 
moreover,  when  a  case  is  appealed  from  the  commercial  court 
where  is  it  brought  to  ?  Before  the  court  of  appeals,  where  no 
lay  judges  are  sitting,  but  only  real  judges.  In  some  places, 
where  the  institution  of  commercial  courts  has  not  seemed  to  be 
warranted  by  the  amount  of  business  transacted,  it  has  been 
found  convenient  to  enact  that  the  ordinary  civil  courts  shall 
sit  as  commercial  courts  in  commercial  cases,  and  there  is  no 
sign  in  those  communities  where  an  ordinary  court  acts  as  a 
business  court  that  business  men  want  a  commercial  court  to  be 
instituted.  In  fact  public  opinion  and  legal  opinion  are  going 
a  good  deal  against  commercial  courts  in  Europe  to-day.  It  is 
a  fact  that  in  most  commercial  countries  in  the  world,  the 
leading  countries  in  that  respect  for  so  many  centuries,  they 
have  never  had  commercial  courts,  but  have  transacted  the  com- 
mercial cases  in  ordinary  courts,  and  in  Belgium  and  France 
to-day  the  only  reason  for  the  retention  of  the  commercial 
courts  is  not  a  legal  question,  is  not  a  practical  question,  I 
should  say  it  is  a  political  reason,  because  after  serving  a  short 


98       CONGRESS   OF  LAWYERS  AND   JURISTS 

time  in  a  commercial  court  the  business  men  earn  the  title  of 
judge  and  a  decoration.     [Laughter.] 

I  am  afraid  also  that  more  occasions  for  the  use  of  the  jury 
will  lead  to  a  larger  number  of  new  trials.  In  Continental 
Europe,  at  least,  we  hardly  know  what  a  new  trial  is,  because 
we  never  have  a  jury,  and  therefore,  when  the  judge  has  passed 
on  the  case,  unless  something  quite  unexpected  turns  up,  an 
element  which  was  not  brought  to  the  notice  of  the  judge  and 
should  have  been  brought,  there  is  no  new  trial.  That  is  the 
only  thing  that  is  open  to  us  and  we  cannot  complain  of  it, 
because  my  impression  is,  although  I  have  never  practiced  in 
the  English  courts,  that  new  trials  are  generally  a  source  of 
expense  and  a  hindrance  in  the  administration  of  justice. 

The  extensive  adoption,  furthermore,  of  a  system  of  sworn 
statements  made  in  court  by  parties  would  lead,  I  am  afraid, 
to  a  larger  amount  of  perjury  than  is  to-day  committed,  most 
of  which,  I  am  sure,  is  very  difficult  to  prove  and  a  great  deal 
of  which  is  not  punished  and  even  not  prosecuted. 

I  remember  that  a  philosopher  who  went  astray  into  the 
legal  profession  for  a  couple  of  years  once  told  me  he  had  prac- 
ticed for  about  six  weeks  in  the  lower  criminal  courts,  and 
spoke  of  the  sworn  statements  of  witnesses  whom  he  had 
seen  a  few  minutes  before  outside  of  the  court  barter  and  agree 
for  a  few  cents  that  they  would  make  such  and  such  testimony, 
and  when  he  had  seen  the  parties  themselves  contradict,  in  the 
most  flagrant  way,  things  on  which  it  was  agreed  there  could  not 
be  any  contradiction,  he  said:  "I  am  sorry  I  went  there,  be- 
cause I  lost  every  faith  I  had  in  human  nature." 

The  statement  of  the  facts  by  the  parties  themselves,  as 
Mr.  Fahlcrantz  wants  to  have  them  made  in  court,  not  under 
oath  and  not  by  their  own  counsel,  but  by  the  parties  themselves, 
seems  a  bad  suggestion.  Parties  are  selfish,  they  are  impas- 
sioned, they  are  prompted  by  vivid  interest,  and  they  are  easily 
unfair  to  each  other.  I  think  that  any  one  who  has  practiced 
for  some  time  knows  how  much  unnecessary  chaff  is  excluded 
beforehand  by  counsel.     When  he  has  made  a  so-called  cross- 


PROFESSOR   NERINCX  99 

examination  of  his  own  client  within  his  office  walls  he  knows 
what  to  leave  out,  and  it  is  certainly  in  most  cases  about  four- 
fifths  of  what  a  client  comes  and  tells. 

Moreover,  parties  are  nervous,  they  are  awed  by  the  solem- 
nity of  the  occasion  and  sometimes  they  will  make  damaging 
admissions  through  sheer  ignorance  or  misunderstanding  when 
a  lucid  explanation  of  counsel  will  state  the  case  in  much  shorter 
time.  Anyhow,  the  tale  of  each  party  will,  in  most  cases,  be 
confused  by  the  introduction  of  much  extraneous  matter 
which  will  bore  the  counsel,  bore  the  judges,  and  confuse  the 
jury. 

I  beg  to  be  allowed  to  suggest  a  few  ideas  derived  from 
Continental  practice,  and  which  I  suppose  will  be  in  order, 
inasmuch  as  we  are  discussing  the  best  way  of  trying  civil  cases 
and  the  best  way  of  reaching  the  truth.  As  Mr.  Fahlcrantz 
very  properly  suggested,  it  is  the  universal  practice  on  the  Con- 
tinent that  pleadings  should  be  drawn  up  by  both  counsel  on 
each  side  some  time,  say  a  week  or  so,  before  the  date  set  for 
argument. 

The  President: 

I  regret  to  say  the  time  allowed  for  this  discussion  has 
expired,  but  by  general  consent  you  may  proceed. 

Professor  Nerincx: 

Just  two  minutes.  The  pleadings  should  be  drawn  up  and 
counsel  should  exchange  them  and  exchange  their  briefs,  both 
briefs  to  be  submitted  to  counsel  on  each  side,  in  order  that  the 
trial  be  not,  shall  I  say,  a  sport  ? — but  be  an  argument  on  the  legal 
merits  of  the  case  by  people  who  have  exchanged  beforehand 
their  ideas,  and  who  have  fully  agreed  to  exclude  from  the  court 
all  points  except  those  on  which  they  cannot  reasonably  agree. 
No  trial  should  take  place  before  the  pleadings,  if  not  the 
briefs,  have  been  submitted  to  the  judge,  and  it  is  the  rule  in 
Continental  courts  that  no  trial  can  be  opened  unless  the  briefs 
have  been  submitted  to  the  judge,  and  the  trial  is  always  opened 


loo     CONGRESS   OF   LAWYERS  AND   JURISTS 

with  the  reading  of  the  pleadings  which  seem  most  necessary 
to  reach  the  truth.  The  sounder  system  is  to  get  good  judges 
appointed  for  hfe,  properly  paid,  selected  from  the  best  ele- 
ments of  the  bar  at  an  age  when  experience,  training,  and  the 
respect  won  by  their  former  achievements  will  secure  for  them 
such  confidence  as  will  render  the  presence  of  a  jury  wholly 
unnecessary.  Then  I  am  perfectly  sure  you  will  have  a  fair 
and  speedy  trial  of  each  case  on  its  own  merits.     [Applause.] 

The  President: 

We  have  very  much  enjoyed  this  discussion,  and  are  very 
thankful  to  the  gentlemen  for  what  they  have  presented  before 
us,  and  now  Judge  Fahlcrantz  desires  to  speak  five  or  ten 
minutes  in  reply  to  what  Professor  Nerincx  has  said. 

Herr  Fahlcrantz  : 

With  reference  to  the  kind  remarks  of  Judge  Hartmann,  I 
should  only  say  that  I  am  happy  to  think  he  agrees  with  me 
that  the  purpose  of  administration  of  justice  would  be  promoted 
by  a  system  adopting  a  great  deal  of  the  ideas  respecting  evi- 
dence and  pleadings,  which  I  have  ventured  to  draw  attention  to. 

The  golden  age  wall  not  be  arrived  at  by  them,  but  it  would 
be  a  good  thing  if  we  could  shorten  a  little  the  time  for  arriving 
at  it,  and  even  if  we  were  or  when  we  come  in  the  midst  of  the 
golden  age,  I  am  pretty  sure  that  at  least  the  American  people 
will  never  leave  off,  always  to  try  to  make  it  still  a  little  bit  better, 
a  little  bit  more  golden. 

Professor  Nerincx  has  got  the  impression  that  I  wished  to 
have  pleadings  drawn  up  on  oath.  I  mean  it  not  so,  but  indeed 
my  meaning  is  that  they  should  in  some  way  be  regulated  by 
discovery  and  inquiry  and  interrogations  which  are  to  be 
answered  on  oath. 

Professor  Nerincx  has  expressed  some  hesitation  as  regards 
the  possibility  of  getting  good  juries.  I  have  a  high  esteem 
for  the  people  of  the  Roman  race,  but  I  am  afraid  they,  as  well 
as  the  old  Athenians,  are  a  little  more  hotblooded,  a  little  more 


HERR   FAHLCRANTZ  loi 

passionate,  than  the  German,  Anglo-Saxon,  and  Scandinavian 
races,  and  jurors  should  not  be  too  passionate.  In  my  country, 
and  certainly  in  all  the  colder  regions  of  Europe  and  in  all 
North  America,  despite  the  86  degrees  of  Fahrenheit  which 
seems  to  be  the  normal  temperature  of  this  country,  I  have  no 
doubt  that  the  cool  kind  of  people  which  are  desirable  in  juries 
will  always  be  found,  although  I  think  indeed  that  the  way  of 
selecting  jurors  will  be  subject  to  improvements. 

With  reference  to  another  remark,  I  should  say  this:  If  it 
is  true  that  a  good  judge  can  be  able  to  determine  questions 
of  law,  it  is  also  true  that  laymen  are  able,  and  very  well  able, 
to  state  the  truth;  but  if  it  is  so,  it  is  not  right  to  exclude  them. 
That  is  the  very  point.  According  to  my  opinion  the  very 
normal  way  of  stating  facts  is  to  have  that  done  by  representa- 
tives of  the  people  itself,  and  the  people  has  need  of  keeping 
such  a  natural  privilege — it  is  an  important  part  of  their  freedom. 

With  reference  to  commercial  matters,  I  have  had  an  oppor- 
tunity of  hearing  such  a  man  as  the  president  of  the  Chamber 
of  Commerce  in  Paris,  M.  Dietz  Monin,  Senateur — I  hope  he 
may  be  still  in  life — say  that  the  very  honesty  and  probity  of 
the  French  world  of  commerce  is  due  to  the  French  commercial 
courts  in  which  only  merchants  are  judges.  I  am  about  sure 
that  French  merchants  most  generally  agree  with  that  authority, 
and  indeed  I  have  heard  many  leading  representatives  of  the 
commercial  interest  express  about  the  same  opinion  as  expressed 
by  Monsieur  Dietz  Monin,  and  I  dare  say  that  my  personal 
knowledge  of  the  work  performed  by  commercial  courts  amply 
supports  the  idea  I  have  of  the  propriety  of  such  courts. 

As  regards  the  fear  expressed  by  Mr.  Nerincx  of  perjury 
if  sworn  statements  would  be  brought  in  frequent  use,  and  espe- 
cially if  the  parties  should  be  heard  as  witnesses,  I  might  refer 
to  an  utterance  of  one  of  the  EngHsh  high  judges,  I  think  it  was 
Baron  Ch.  Edw.  Pollock,  He  said  to  me  that  earlier,  or  in 
the  first  time  after  hearing  parties  as  witnesses  was  allowed  in 
England,  some  judges  were  prompt  to  see  perjury  in  any  dis- 
crepancy between  statements  of  the  parties,  but  that  the  Enghsh 


I02      CONGRESS   OF   LAWYERS  AND   JURISTS 

judges  had  soon  enough  been  aware  that  it  is  quite  natural  if 
parties  sometimes  see  facts  different  because  they  see  them 
from  different  points  of  view;  and  in  this  moment  I  think  that 
English  judges  generally  join  in  the  words  once  said  by  Lord 
Herschell,  that  it  would  scarcely  be  possible  to  administer 
justice  duly  without  the  right  of  taking  the  truth  from  the  parties 
themselves.     [Applause.] 

The  Peestdent: 

Under  the  rules  there  is  an  opportunity  for  discussion  by 
the  members  of  the  Congress,  but  the  rules,  as  I  called  to  your 
attention  yesterday,  are  to  the  effect  that  any  one  wishing  to 
engage  in  such  discussion  shall  send  up  his  name  on  a  card. 
None  has  been  sent  up,  so  I  propose  temporarily  to  hear  from 
the  Committee  of  Nations  its  report,  and  if  during  the  reading 
of  the  report  a  card  is  sent  up  by  any  gentleman,  we  will  give 
him  an  opportunity  to  take  part  in  the  discussion  of  the  ques- 
tions before  us  this  morning. 

The  Honorable  Wallace  Nesbitt,  Justice  of  the 
Supreme  Court  of  the  Dominion  of  Canada  (Chairman 
of  the  Committee  of  Nations) : 

The  only  matter  that  the  Committee  have  been  able  to  deal 
with  up  to  the  present  moment  is  the  motion  submitted  by  Mr. 
Everett  P.  Wheeler,  who  moved  that  the  Committee  be 
requested  to  make  arrangements  for  the  holding  of  subsequent 
meetings  in  the  Hall  of  Congresses,  owing  to  the  difficulty  of 
hearing  in  Festival  Hall.  The  Committee  made  inquiry  and 
found  it  was  not  feasible.  The  Hall  of  Congresses  is  engaged, 
and  this  is  the  only  place  of  meeting  possible  to  be  obtained  for 
meetings,  so  we  will  make  report  that  we  are  unable  to  comply 
with  the  request.     On  other  matters  we  report  progress. 

The  President: 

I  have  received  no  card  from  any  gentleman.  Perhaps 
there  is  some  gentleman  who  wishes  to  speak  and  we  will  not 


PROFESSOR   NERINCX  103 

stand  on  any  rule.  If  there  are  any  gentlemen  who  desire  to 
come  on  the  platform  and  discuss  the  question  we  will  be  glad 
to  hear  from  them. 

Mr.  Frederick  N.  Judson  of  Missouri,  a  Delegate 
from  the  American  Bar  Association: 

We  have  several  gentlemen  here  who  would  like  very  much 
to  hear  Professor  Nerincx  give  us  the  rules  of  evidence  in  the 
courts  of  Continental  Europe,  how  the  facts  are  ascertained. 

The  Honorable  John  F.  Dillon   of  New  York,  a 
Delegate  from  the  United  States  Government: 
Are  witnesses  produced  before  the  judge? 

Professor  Nerincx: 
Yes. 

Judge  Dillon: 
Not  the  referee? 

Professor  Nerincx: 

No,  before  the  judge.  But  no  transaction  that  covers  more 
than  thirty  dollars'  worth  of  property  can  be  proved  unless  by  a 
written  instrument.  That  is  the  fundamental  principle  of  the 
civil  code  which  has  been  adopted  in  most  of  the  Continental 
countries.  The  whole  system  of  evidence  rests  primarily  on 
written  proof,  and  it  is  only  for  facts  of  which  no  written  proof 
could  possibly  be  adduced  that  oral  evidence  is  taken,  and  of 
course  this  is  not  so  in  criminal  matters,  but  in  civil  matters 
where  over  thirty  dollars'  worth  of  property  is  involved  no  oral 
proof  can  be  given.  No  proof  whatever  can  go  against  a 
properly  executed  deed  beyond  referring  to  the  contents  of  the 
deed,  but  such  deed,  you  must  remember,  has  been  drawn  up 
by  an  official  called  a  notary,  not  the  same  as  a  notary  in 
England  and  America,  but  a  state  appointed  official  who  is 
practically  the  record-keeper  of  every  deed  of  real  estate,  wills, 


I04     CONGRESS   OF  LAWYERS  AND   JURISTS 

settlements,  and  so  forth.  In  many  cases  the  law  compels  you 
to  go  to  such  notary  to  have  a  deed  made.  There  are  quite  a 
number  of  deeds  that  you  cannot  pass  under  a  private  sign 
manual. 

Judge  Dillon: 

Can  a  deed  be  canceled  for  fraud  ? 

Professor  Nerincx  : 

If  there  is  fraud  in  the  deed  you  must  impeach  the  official  who 
drew  up  the  deed  because  by  the  rules  of  his  profession  he  is 
supposed  to  look  into  the  truth  of  everything  told  before  him 
when  the  deed  is  made.  They  are  officials  before  whom  the 
charters  of  companies  are  drawn.  The  act  requires  that  when 
a  company  is  incorporated  the  capital  shall  be  entirely  subscribed 
for  and  ten  per  cent  of  it  shall  be  actually  in  the  hands  of  those 
who  incorporate  the  company  and  deposited  on  the  table  of  the 
official  who  draws  the  deed,  and  when,  therefore,  the  capital  is 
not  entirely  subscribed  for,  or  if  that  ten  per  cent  is  not  deposited 
there,  the  notary  who  draws  the  deed  or  charter  is  responsible 
for  the  condition  and  the  avoidance  of  the  charter  that  will 
ensue.  On  the  other  hand,  if  the  charter  is  signed  by  proxy, 
and  the  proxies  are  not  proper,  the  notary  is  responsible,  because 
he,  being  a  state  official,  has  the  means  in  his  hands  to  probe 
the  genuineness  of  the  signatures  and  other  conditions. 

Mr.  Judson: 

Are  witnesses  examined  by  counsel  in  court? 

Professor  Nerincx  : 

Yes. 

Judge  Dillon: 

I  came  into  the  hall  this  morning  to  listen  and  learn  and 
with  no  purpose  to  take  any  part  in  the  discussions.  But  I 
cannot  refrain  from  expressing  my  great  satisfaction  and  my 


JUDGE    DILLON  105 

grateful  sense  of  obligation  for  the  very  interesting  and  instruc- 
tive papers  which  have  just  been  read  by  our  distinguished 
visitors.  They  broaden  our  views,  and  I  have  no  doubt  where 
a  free  people,  like  the  people  of  Germany,  like  the  people  of 
Austria,  like  the  people  of  Sweden  or  Belgium,  have  adopted 
their  own  system  of  jurisprudence  under  the  light  and  guidance 
of  experience  and  of  the  sages  of  the  law,  that  each  system  may 
be  and  probably  is  the  best  for  those  respective  countries,  and 
so  applying  the  same  observation  to  ourselves  and  to  the  system 
of  laws  and  jurisprudence  which  prevails  in  England  and  in 
this  country,  I  have  ever  been  of  the  opinion  (and  I  have  heard 
nothing  to-day  that  has  in  the  slightest  degree  changed  it)  that 
our  system  is  the  best  for  us.  It  is  a  distinctive  system,  it  pro- 
ceeds radically  from  the  idea  of  individual  freedom,  which 
characterizes  the  people  and  the  institutions  of  this  country, 
and  it  expresses  my  idea  to  say  that  it  is  from  the  foundation 
to  the  entablature,  from  first  to  last,  an  adversary  or  contentious 
system.  If  two  men  want  to  make  a  contract  they  act  for  them- 
selves or  select  an  attorney  and  they  are  not  obhged  to  go  before 
a  notary.  There  may  be  an  advantage  in  going  before  a  notary, 
I  cannot  pronounce  judgment  on  that,  but  our  experience  does 
not  recommend  it  to  us.  I  have  nothing  to  say  against  courts  of 
conciliation,  but  from  what  has  been  said  this  morning  they  do 
not  seem  to  be  a  marked  success  in  Europe. 

With  us  when  controversy  arises,  the  aggrieved  party  selects 
his  own  counsel,  he  takes  his  advice;  undoubtedly  the  parties 
frequently  undertake  to  effect  conciliation  and  adjustment,  but 
when  you  come  to  the  stage  where  the  controversy  cannot  be 
settled  by  concihation  or  adjustment  you  resort  to  the  judicial 
tribunals.  Such  tribunals  are  the  great  sheet  anchors  of  any 
nation,  and  the  trouble  that  we  have  in  the  Philippines  is  that 
they  have  no  independent  judicial  system  in  the  Enghsh  and 
American  sense  of  that  term. 

With  us  the  plaintiff  states  his  case  in  limine,  in  what  we 
call  the  old  common-law  declaration,  or  narration,  or  complaint, 
or  bill  in  equity.     That  is  the  case  as  his  counsel  states  it  in  his 


io6     CONGRESS   OF   LAWYERS   AND   JURISTS 

own  way,  and  such  statement  is  now  freely  allowed  to  be 
amended.  We  have  had  a  long  struggle  for  that.  The  defend- 
ant states  his  defense  in  his  own  way.  And  thus  the  exact  con- 
troversy is  defined  before  evidence  is  taken.  I  cannot  under- 
stand the  necessity  or  advantage  of  taking  a  large  volume  of 
evidence  on  either  side,  or  both  sides,  without  the  controversy 
being  delimited  in  advance,  and  prior  to  the  trial.  I  can't 
understand  it.  Now,  in  regard  to  the  mode  of  trial,  we  have, 
may  it  please  your  Honor  [Laughter]  (1  must  have  thought  I 
was  in  the  Supreme  Court  at  Washington),  a  presiding  judge, 
and  in  many  cases  trial  by  jur}-.  Trial  by  jury  is  a  part  of  our 
liberties.  W^e  venerate  and  prize  it.  It  connects  the  citizen 
with  the  administration  of  justice.  In  comphcated  disputes 
which  are  heard  in  courts  of  equity,  and  in  commercial  and 
other  intricate  matters,  under  our  system  of  jurisprudence 
the  jury  has  no  cognizance,  and  such  controversies  are  decided 
by  the  chancellor  or  judge  upon  evidence  produced  before  or 
to  him  by  the  parties.  In  other  cases  we  bring  the  witnesses 
into  court  face  to  face  with  the  judge  and  jury,  and  that  is  the 
best  way  to  arrive  at  the  truth.  In  chancery  cases  we  have  to 
resort  at  times  to  referees  or  masters  in  chancery;  unfortunately 
sometimes  it  is  a  necessity.  The  officers  ought  never  to  become 
autonomous,  they  ought  not  to  be  clothed  with  independent 
authority,  they  ought  to  be  mere  aids  to  the  court.  I  am 
opposed  on  principle,  I  am  opposed  in  the  interest  of  the  highest 
administration  of  justice,  to  attaching  so  much  weight  as  modern 
legislation  sometimes  attaches  to  the  findings  of  masters  or 
referees,  giving  the  finding  some  degree  of  conclusiveness. 
The  people  of  this  country  revere  their  judges  and  their  judicial 
institutions.  They  elect  or  select  men  of  honor,  men  of  training, 
men  of  learning  in  the  law  and  of  experience  and  capacity,  to 
be  their  judges,  who  hold  court  in  the  open  light  of  heaven  and 
are  responsible  to  an  inteUigent  bar  and  an  intelligent  public 
opinion,  and  the  people  want  just  as  little  of  masters  and  referees 
as  may  be,  and  when  in  an  argument  of  a  cause  in  the  high 
tribunal,  of  which  you  [Mr.  Justice  Brewer]  arc  such  a  dis- 


JUDGE    DILLON  lo: 


tinguished  member,  allow  me  to  say  when  you  see  in  a  cause 
there  a  finding  below,  which  you  are  to  regard  as  conclusive, 
and  under  the  legislation  of  some  states  it  has  the  sanctity  of  a 
verdict  and  it  prevents  your  Honor  applying  your  ear  to  the 
testimony  and  determining  the  very  right  for  yourself,  I  think 
the  avenues  of  justice  have  been  closed  or  clogged.  Take  the 
testimony  before  a  referee  or  master  and  let  him  find  his  con- 
clusions, but  do  not  let  them  be  conclusive. 

I  have  Httle  more  to  say,  except  to  express  my  great  satisfac- 
tion, on  the  whole,  with  the  system  of  jurisprudence  we  have 
to-day,  including  the  trial  by  jury.  Let  me  add  that  I  have 
had  no  inconsiderable  experience  in  the  trial  of  cases  by  jur)', 
and  rarely,  in  my  judgment,  is  the  verdict  of  a  jury  wrong 
where  the  presiding  judge  has  fully,  intelligently,  and  faithfully 
performed  his  duty.  I  do  not  want  a  jury  to  usurp  the  pre- 
rogatives of  the  judge,  but  on  the  other  hand,  where  the  ques- 
tion is  one  of  fact,  pure  and  simple,  where  it  relates  to  the  com- 
mon affairs  of  men,  as,  for  example,  with  what  purpose  or  intent 
acts  done,  what  were  the  circumstances  which  led  to  them, 
is  the  accused  upon  the  evidence  innocent  or  guilty,  on  such 
propositions,  when  submitted  to  the  jury,  if  the  jury  are  not 
misled  by  false  instructions,  and  if  their  judgment  has  full 
play,  I  would,  on  such  questions,  as  Hef  have  the  judgment  of 
a  jur}^  of  ordinar}'  intelligence  as  of  twelve  learned  judges. 
[Applause.]  And  for  that  statement  I  have  the  authority  of  a 
judge  in  whose  seat  you  sit  in  Washington,  who  was  an  honor 
to  the  jurisprudence  of  his  country,  the  late  Mr.  Justice 
Miller. 

Now,  then,  I  do  not  say  if  we  could  take  the  code  of  Germany 
or  Austria  or  France  that  we  might  not  derive,  and  probably 
could  derive,  valuable  lessons,  but  I  believe  we  would  find 
nothing  to  alter  the  great  outlines  or  the  essential  nature  of  our 
judicial  system. 

I  hope  many  of  the  gentlemen  here  present  heard  the  admir- 
able paper  which  was  read  a  day  or  two  since  in  this  hall  before 
the  American  Bar  Association,  prepared  by  Judge  Thayer.     It 


io8     CONGRESS   OF   LAWYERS  AND   JURISTS 

refers  to  the  fact  that  out  of  the  Louisiana  Purchase,  which 
great  event  is  the  occasion  of  this  asscmbHng,  the  occasion  of 
these  magnificent  structures  that  we  see  around  us  filled  with 
masterpieces  of  the  world  in  science,  in  mechanics,  and  in  art, 
the  people  of  this  country  have  erected  fourteen  states  which 
have  been  carved  out  of  it,  with  fourteen  millions  free  people 
inhabiting  them.  In  my  early  life  the  settlements  were  con- 
fined to  the  Mississippi,  for  when  I  went  to  Iowa,  in  1838,  the 
Indians  were  thicker  than  white  men,  thicker  than  leaves  in 
Vallambrosa.  There  is  nothing,  in  my  judgment,  in  all  this 
great  acquisition  comparable  to  the  fact  that  the  hardy,  indus- 
trious people  who  settled  it,  carried  with  them  their  laws  and 
their  notions  of  freedom  and  independence,  and  the  deep-rooted 
conviction  that  liberty  and  justice  are  one  and  inseparable,  and 
in  all  that  region,  except  to  some  extent  in  one  or  two  States, 
the  principles  of  the  common  law  have  been  adopted,  and  in 
the  forty-five  States  in  this  great  Republic  the  strongest  bond 
of  union  is  the  system  of  jurisprudence,  uniform  and  homo- 
geneous in  all  its  essential  characteristics,  which  prevails  from 
Maine  to  California  and  from  the  Gulf  to  the  Great  Lakes,  so 
that  a  lawyer  in  any  State  familiar  with  the  system  of  his  own 
State  can  take  the  statutes  and  decisions  of  the  several  States 
and  feel  himself  at  home  with  them,  and  nobody  knows  that 
better  than  your  Honor.     [Applause.] 

Mr.  C.  C.  Cole,  a  Delegate  of  the  lov^a  State  Bar 

Association : 

I  should  like  to  tell  an  anecdote.  Some  forty-five  years  ago 
a  young  lawyer  from  New  York  came  to  Iowa  to  enter  the  prac- 
tice of  the  law.  In  talking  with  an  old  Iowa  lawyer,  he  said, 
"What  you  ought  to  do  here  is  to  pass  the  New  York  code." 
The  old  lawyer  asked,  "What  for?"  He  replied,  "So  you  can 
have  the  New  York  practice."  The  old  lawyer  said,  "That 
would  not  do  it;  you  could  not  get  the  New  York  practice  here 
without  you  imported  New  York  lawyers  and  New  York 
judges."     [Laughter.] 


JUDGE   TUCK  109 


The  Honorable  Somerville  P.  Tuck,  Judge  in  the 
Cairo  Mixed  Court,  Delegate  of  the  Egyptian  Government : 

Mr.  President:  I  have  listened  with  the  greatest  interest  to 
the  papers  and  the  discussion  which  has  followed  to-day.  I 
happen  to  be  a  member  of  a  court  which  applies  the  civil  code, 
the  code  of  Napoleon  modified  to  suit  the  different  conditions 
prevaihng  in  Egypt,  and  on  all  fours  with  the  changes  in  judicial 
science  in  the  last  hundred  years.  I  have  had  an  opportunity 
during  that  time  to  persuade  myself  that  civil  matters  can  be 
honestly  decided  without  the  interposition  of  a  jury. 

As  regards  the  commercial  courts,  of  which  I  am  a  member, 
it  might  interest  the  Delegate  from  Belgium  to  know  that  the 
reform  he  has  suggested  here  to-day  was  made  twenty-five 
years  ago  in  Egypt,  where  the  commercial  tribunal  is  composed, 
like  any  other  part  of  the  court,  of  three  foreign  judges  and  two 
native  ones,  and  to  them  in  commercial  cases  are  added  two 
assessors,  one  foreign  and  one  native.  The  assessors  are  selected 
by  different  mercantile  guilds,  just  exactly  as  the  Delegate  from 
Belgium  has  explained.  Those  gentlemen  sit  monthly  and  in 
rotation.  The  proceeding  is  a  simple  one.  The  action  is 
brought  by  a  paper,  summons,  proof  of  service,  and  answer  is 
made  in  open  court  on  the  return  day,  and  a  day  is  fixed  for 
hearing.  When  the  hearing  comes  on,  should  the  parties 
desire  to  introduce  oral  testimony  a  motion  must  be  made,  and 
it  is  argued  and  the  court  determines  whether  written  proof 
shall  be  received,  or  whether  there  shall  be  a  hearing  of  wit- 
nesses. In  the  latter  case  the  proofs  are  taken  before  one  of  the 
judges.  The  case  comes  on  for  final  argument  and  it  is  dis- 
cussed. The  judgments  are  postponed  eight  days,  and  the 
presiding  judge  designates  one  of  the  judges  to  make  a  report 
in  the  case  and  it  is  usually  the  judge  who  has  taken  the  testi- 
mony. During  this  time,  the  papers  are  examined  by  him 
and  considered.  The  judge  who  has  made  the  report  signs  the 
opinion  and  there  is  no  dissenting  opinion.  I  leave  it  to  you 
to  say  whether  that  does  not  offer  some  advantage  over  the 
hurly-burly  of  the  jury  room. 


no     CONGRESS   OF  LAWYERS  AND   JURISTS 

Mr.  Theodore  Sutro  of  New  York,  a  Delcgate-at- 
large : 

Mr.  President:  I  only  want  to  say  a  few  words.  Nothing 
can  be  added  to  the  eloquent  and  just  remarks  of  Judge  Dillon 
in  favor  of  the  jury  system,  and  while  it  is  true  that  in  this 
country  and  in  many  states  there  has  been  discussion  as  to 
whether  the  requirement  of  a  unanimous  verdict  of  the  jury 
might  not  be  open  to  question  in  certain  cases,  owing  to  the 
difficulties  therein,  as  we  have  experienced  in  New  York,  it  is 
unnecessary  to  add  that  every  lawyer,  practicing  under  the 
common  law,  believes  in  the  jury  system,  certainly  those  lawyers 
who  have  had  experience  in  jury  trials.  I  wish  to  call  attention 
to  one  feature  with  respect  to  which  I  think  there  may  be  a 
misapprehension.  I  would  hke  to  ask  Dr.  Hartmann  whether 
I  am  not  correct  in  the  view  that  the  jury  system  has  obtained 
a  foothold  in  Germany  and  a  jury  is  employed  in  the  trial  of 
cases,  and  how  far  that  system  is  in  vogue.  If  he  will  explain 
that  to  us,  I  think  it  will  aid  us  by  showing  that  the  jury  system 
has  been  adopted  in  Continental  Europe  to  a  certain  extent. 

Mr.  J.  W.  Vandervoort,  a  Delegate  from  the  West 
Virginia  Bar  Association : 

I  would  like  to  ask  Dr.  Hartmann  whether  or  not  in  Germany 
hearsay  evidence  is  admissible  in  civil  cases. 

Dr.  Hartmann: 

In  civil  cases  we  have  in  Germany  no  jury  at  all.  There  are 
commercial  courts  in  the  Chambers  of  Commerce,  and  these 
courts  are  composed  of  a  learned  judge,  the  presiding  judge, 
and  two  associates  who  are  merchants.  These  associates  may 
be  considered  like  a  jury,  but,  nevertheless,  this  jury  properly 
has  authority  of  its  own,  uncontrolled  by  the  learned  judge, 
thus  making  a  difference.  We  have  no  hearsay  rule,  as  I  said 
before,  in  Germany,  at  all.  Professor  Nerincx  spoke  of  the 
restriction  of  the  evidence  of  witnesses  in  Continental  Europe. 
This  is  the  law  in  France  and  in  Belgium,  but  not  in  Germany. 


MR.    SURVEYER  m 


I  know  that  very  often  a  lawyer  coming  from  Germany  to 
America  is  asked  whether  there  are  no  rules  of  evidence  at  all. 
The  rule  is  that  the  oath  of  the  party  makes  true  evidence  under 
all  circumstances  so  long  as  the  swearing  party  is  not  punished 
by  the  criminal  court  for  perjury.  Aside  from  this  rule  of  evi- 
dence the  judge,  in  determining  matters  of  fact,  is  free  to  take 
in  and  consider  any  evidence  which  he  thinks  fit.  He  may  hear 
what  was  told  to  a  witness.  He  may  require  the  witness  to  state 
what  Mr.  A  has  told  him,  the  witness,  or  what  Mr.  B  has  told 
to  another  gentleman.  The  hearsay  rule  is  unknown  to  us. 
There  may  be  one,  two,  three,  or  four  persons  and  more  between 
the  man  who  has  seen  or  heard  something  and  the  witness 
himself — it  is  all  quite  the  same. 

Mr.  Cole: 

Mr.  President:  I  want  to  add  a  single  statement  to  the  very 
comprehensive  suggestions  by  Judge  Dillon  in  respect  of  the 
desirabihty  of  a  jury  trial  in  this  country,  and  that  is  the  verdict 
of  a  jury  is  more  uniformly  satisfactory  and  readily  accepted 
tfian  a  decision  by  a  single  judge,  growing  out,  possibly,  of  the 
fact  suggested  by  some  gentleman,  of  the  possibility  of  one 
individual  being  approached  where  a  jury  of  twelve  cannot  be. 
It  is  that  satisfaction  which  is  the  great  bulwark  of  our  jury 
system. 

Mr.  E.  Fabre  Surveyer  of  Montreal,  Canada,  a 
Delegate-at-large : 

Mr.  Chairman  and  Gentlemen  of  the  Universal  Congress  of 
Lawyers  and  Jurists:  I  am  a  member  of  the  Bar  of  the  Province 
of  Quebec,  and  have  listened  with  the  deepest  interest  to  the 
remarks  made  by  our  confreres  from  abroad,  and  also  to  the 
remarks  made  by  eminent  members  of  the  bars  of  the  different 
States  of  this  country.  I  have  gathered  from  the  remarks  of 
these  men,  men  of  experience,  men  of  international  fame,  that 
it  is  not  the  time  for  us  to  suggest  any  improvements  upon  the 
excellent  system  of  jury  trials  in  the  State  of  New  York  and 


112      CONGRESS   OF   LAWYERS   AND   JURISTS 

in  the  State  of  Iowa,  and  all  we  could  be  expected  to  do  is  to 
give  a  brief  explanation  of  our  own  system  as  a  matter  of  curi- 
osity only. 

The  Province  of  Quebec  is  in  a  peculiar  situation,  and  pos- 
sibly in  view  of  its  peculiar  situation  a  short  statement  of  its 
system  of  laws  and  system  of  trials  may  be  of  some  interest  to 
you.  We  have  kept  the  French  law  as  transmitted  to  us  by 
the  founders  of  the  province,  and  which  was  once  embodied  in 
the  old  Custom  of  Paris.  The  Custom  of  Paris,  the  law  then 
existing,  was  codified  in  1866  in  a  code  which  resembles  very 
much  the  code  Napoleon  and  the  code  of  Louisiana.  So 
much  for  our  civil  law.  The  criminal  law  comes  altogether  from 
England.  Now,  in  civil  matters  the  evidence  is  based  upon  the 
principles  of  the  French  law,  and  consequently  the  rules  are 
substantially  the  same  as  explained  by  our  confrere  from  Bel- 
gium, Professor  Nerincx.  In  commercial  matters  we  have  the 
statute  of  frauds  and  in  matters  of  bills  of  exchange  the  rules 
of  EngHsh  law,  as  existing  in  England  previous  to  1849.  Now, 
to  revert  to  trial  by  jury,  trial  by  jury  in  civil  matters  is  not 
usual  in  the  Province  of  Quebec.     There  are  reasons  for  this: 

First  of  all,  it  may  be  said,  as  Judge  Dillon  I  think  remarked, 
there  may  be  a  question  of  temperament  in  the  choice  of  a  jury 
system,  or  in  the  choice  of  a  judge  system.  Four-fifths  of  the 
inhabitants  of  the  Province  of  Quebec  are  of  French  descent, 
living  under  French  civil  laws,  or  civil  laws  originating  from 
France.  In  all  cases  where  the  parties  are  of  different  nation- 
ality or  different  origin,  a  mixed  jury,  half  French  and  half 
EngHsh,  may  be  obtained,  which  diversity  of  language  requires 
addresses  in  both  languages,  French  and  English,  a  translation 
of  the  original  deposition  from  French  into  English  or  from 
English  into  French,  and  then  the  charge  by  the  judge  in  both 
languages.  For  these  reasons  trials  by  jury  are  comparatively 
of  rare  occurrence.  Add  to  the  reasons  above  related  the  fact 
that  jury  trials  are  only  permitted  in  two  instances,  in  a  com- 
mercial case  where  the  amount  in  controversy  exceeds  four 
hundred  dollars,  and  in  these  cases  are  included  those  where 


AN   INTERNATIONAL    BAR   ASSOCIATION    113 

one  party  is  a  trader  or  a  trading  corporation,  and  cases  of  torts 
in  relation  to  movable  property,  of  libel  and  slander,  and  of 
personal  injuries  for  the  same  amount,  and  therefore  we  have, 
on  account  of  these  various  obstacles,  a  limited  number  of 
trials  by  jury.  Even  in  the  above-mentioned  cases,  the  party 
who  desires  a  trial  by  jury  must  make  his  option  to  that  effect 
within  a  specified  time.  I  might  say  in  respect  to  the  remarks 
of  the  gentlemen  from  abroad  before  the  case  goes  to  the  jury 
a  statement  of  facts  is  submitted  by  both  parties,  a  statement 
of  questions  to  be  submitted  to  the  jury  is  presented  to  the 
judge  and  he  drafts  them  in  a  definite  form,  and  it  may  happen 
that  after  the  case  has  been  decided  by  the  jury  the  interrogatories 
will  be  found  faulty,  by  an  appellate  court. 

I  must  apologize  for  having  taken  your  time  at  this  late 
hour  of  this  very  interesting  meeting,  but  I  thought  that  the 
Province  of  Quebec  can  be  considered  a  hyphen  between  old 
Europe  and  new  America,  and  there  might  be  something  inter- 
esting in  my  remarks  on  that  account.  I  thank  you  heartily 
for  your  very  kind  attention.     [Applause.] 

The  Honorable  Robert  G.  Street  of  Galveston, 
Texas,  a  Delegate  from  the  Texas  Bar  Association, 
offered  a  resolution  in  reference  to  a  proposed  permanent 
international  association  of  lawyers  and  jurists,  which 
was  referred  to  the  Committee  of  Nations. 

At  I  p.  M.  the  Congress  took  a  recess  until  2  p.  m. 

[During  the  recess  a  luncheon,  given  by  the  St.  Louis  bar,  was  served  on  the 
stage  of  Festival  Hall  to  the  members  and  guests.] 


114     CONGRESS   OF  LAWYERS  AND   JURISTS 

SECOND    DAY 

Thursday,  September  29,  1904 
AFTERNOON   SESSION 

The  Congress  was  called  to  order  by  the  President 
at  2  p.  M. 

The  President: 

I  am  requested  by  the  Chairman  of  the  Committee  of  Nations 
to  say  that  there  will  be  a  meeting  of  that  committee  in  the  rear 
room  immediately,  and  he  would  be  very  much  obliged  if  the 
members  of  the  committee  would  join  him  in  that  room  in 
order  that  they  may  dispose  of  the  matters  which  have  been 
submitted.  I  desire  further  to  say  that  there  is  a  vacancy  in 
that  committee,  caused  by  the  necessary  absence  of  Mr.  Dick- 
inson of  Chicago,  and  it  will  be  proper  at  this  time  to  substitute 
some  one  in  his  place. 

Judge  Baldwin  of  Connecticut,  a  Delegate  from  the 
United  States  Government: 

I  would  move,  Mr.  President,  the  substitution  of  Mr.  Moor- 
field  Storey  of  Boston,  formerly  president  of  the  American 
Bar  Association. 

The  motion  v^as  seconded,  and  being  put  w^as  carried. 
Mr.  Storey  was  then  declared  chosen  as  a  member  of  the 
Committee  of  Nations. 

The  President: 

I  want  to  say  further  that  Mr.  Chow  of  China  desires  to 
have  permission  to  submit  in  writing,  for  publication  in  the 
proceedings,  some  remarks  on  the  paper  of  Judge  Fahlcrantz 
submitted  this  morning.  He  felt  that  perhaps  his  knowledge 
of  the  English  language  was  not  such  that  he  could  make  him- 
self heard  and  understood  by  the  audience,  and  desires,  therefore, 
to  have  those  remarks  of  his  submitted  and  published  in  that 


MR.    CHOW   TSZCHI  115 

way  in  connection  with  the  discussion  this  morning,  and  it  will 
be  so  ordered  unless  some  objection  is  taken  thereto. 

Mr.  Chow  Tszchi,  a  Delegate  from  the  Imperial 
Chinese  Government: 

Mr.  President  and  Gentlemen:  After  listening  to  these 
several  speakers  who  have  so  ably  stated  their  positions,  I  am 
glad  to  have  the  opportunity  to  speak  of  the  conditions  existing 
in  my  country.  In  regard  to  the  method  of  procedure,  I  regret 
to  say  we  have  no  universal  regulation.  Arbitration  is  the 
general  practice  in  all  civil  actions,  when  they  are  first  brought 
to  the  magistratic  court. 

In  the  towns  and  villages,  a  municipal  board  is  established, 
composed  of  men  of  mature  years  and  of  the  gentry.  Before 
this  board  are  brought  all  civil  cases.  A  preliminary  hearing 
is  granted,  and  a  day  named  for  trial.  In  accordance  with  the 
stipulations  made  at  this  hearing,  a  certain  number  of  persons 
of  estabhshed  reputation  present  themselves  on  the  day  of  trial. 
These  persons  form  a  distinct  class  rendering  permanent 
service  for  this  duty,  and  from  this  class  the  specified  number 
is  chosen.  This  body,  in  a  measure,  corresponds  to  the  jury 
of  the  western  countries.  Their  service  is  given  without  com- 
pensation. If  the  decision  handed  down  by  this  body  be  not 
satisfactor}^,  the  case  is  appealed  and  goes  over  to  the  court  of 
hsien  (district),  presided  over  by  the  chihsien  (mayor,  or 
district  magistrate).  Here,  before  formally  reopening  the 
case,  an  effort  is  made  to  adjust  it  through  the  medium  of 
acceptable  parties  who  have  a  full  knowledge  of  the  circum- 
stances, and  who  are  appointed  by  the  chihsien  (mayor,  or 
district  magistrate).  If  this  effort  fails,  however,  the  case  is 
taken  before  the  chihsien,  who,  with  his  associates,  renders  a 
decision.  Should  this  not  be  satisfactory,  the  case  ascends 
thence  through  the  various  municipal  divisions  till  it  reaches 
the  judge  of  the  province,  the  decision,  as  it  passes  through 
each  municipal  grade,  resting  entirely  with  one  man,  the  polit- 
ical head  of  the  territory. 


ii6     CONGRESS   OF   LAWYERS  AND   JURISTS 

From  the  judge  of  the  province  the  case  is  carried  to  the 
court  of  censors  (the  court  for  appeal)  at  Peking,  where  it  comes 
before  a  thoroughly  equipped  judicial  body  whose  honorary 
head  is  the  Emperor. 

As  to  the  method  of  trial  by  jury,  I  wish  in  a  few  words  to 
present  my  view  for  your  consideration.  The  jury  is  the  most 
essential  element  in  civil  actions.  I  do  not  believe  that  it 
could  be  abolished,  but  I  do  believe  that  by  the  introduction 
of  certain  reforms  it  could  be  improved.  For  instance,  I  would 
suggest  that : 

1.  From  the  ranks  of  each  profession  and  avocation  there 
should  be  elected  by  the  vote  of  its  own  members  a  certain 
number  of  persons  to  serve  as  a  first  jury. 

2.  From  the  same  sources  a  second  jury  should  be  elected 
as  an  auxiUary.  If  any  individual  member  of  the  first  jury 
be,  directly  or  indirectly,  involved  in  the  case,  the  juror  could 
be  empaneled  from  the  auxiliary  body. 

3.  If  any  member  should  be  unable  to  answer  the  call,  he 
would  appoint  a  representative,  for  whom  he  would  be  respon- 
sible. 

4.  The  term  of  service  should  be  one  year,  but  the  individual 
member  would  be  re-elected. 

5.  A  reasonable  compensation  should  be  paid  to  the  jurors 
by  the  party  against  whom  the  case  is  decided. 

Were  these  conditions  complied  with,  a  jury  dealing  with 
matters  of  which  it  has  special  knowledge  would  not  fall  into 
errors  as  now  might  be  made  through  ignorance.  Both  parties, 
moreover,  being  known  to  the  jury,  nothing  could  be  concealed. 
With  the  honor  and  interest  of  the  calling  to  which  the  jurors 
themselves  belong  at  stake,  their  decision  would  be  rendered 
with  the  utmost  care. 

The  pREsroENT: 

We  have  this  afternoon  for  consideration  A  Review  of  the 
Four  Hague  Conferences  on  Private  International  Law,  the 
Object  of  the  Conferences,  and  Probable  Results,  and  on  this 


PAPER    OF   PROFESSOR   JITTA  117 

subject  we  are  to  be  favored  with  two  papers,  the  first  by  Dr. 
JosEPHUS  JiTTA.  of  the  University  of  Amsterdam,  Netherlands, 
and  the  second  by  Dr.  F.  Meili,  of  the  University  of  Zurich, 
Switzerland,  followed  by  a  discussion  by  our  well-known  friend. 
Judge  Baldwin  of  Connecticut. 

I  have  the  pleasure  now  of  introducing  to  you  Dr.  Jitta,  of 
the  University  of  Amsterdam,  who  will  read  the  first  paper. 


A  Review  of  the  Four  Hague  Conferences  on 
Private  International  Law,  the  Object  of  the 
Conferences,  and  Probable  Results, 

a  paper  by 

Dr.  D.  JosEPHUS  Jitta,  Professor  in  the  Municipal 
University  of  Amsterdam,  Netherlands,  Delegate  from 
the  Government  of  the  Netherlands. 

Mr.  President,  Ladies  and  Gentlemen:  The  Committee  of 
Organization  of  the  Congress  has  invited  me  to  address  you 
on  the  subject  of  the  four  Hague  Conferences  for  the  codifica- 
tion of  private  international  law,  and  I  have  accepted  that 
invitation  with  the  greatest  pleasure,  even  with  enthusiasm. 
The  cause  of  my  enthusiasm  is  twofold:  I  am  highly  pleased 
with  the  subject,  and  proud  to  have  to  treat  it  in  an  assembly 
such  as  yours. 

I  am  highly  pleased  with  the  subject  because  it  reflects  a 
glory  on  my  native  country.  Although  I  have  acquired  in  my 
studies  on  international  law  the  professional  habit,  if  I  may 
say  so,  of  considering  the  whole  of  mankind  as  the  community 
to  which  I  belong,  in  my  heart  no  part  of  the  world  can  be  com- 
pared with  my  native  country,  and  so  I  am  happy  to  have  a 
subject  that  redounds  to  the  glory  of  the  Netherlands,  the  power 
that  took  the  initiative  in  the  conferences,  and  upon  the  states- 
men of  the  Netherlands,  who  have  been  the  promoters  of  a  noble 
endeavor.  I  have  been  sent  to  St.  Louis  as  representative  of 
the  Government  of  the  Netherlands  to  this  Congress,  but  I  must 


ii8     CONGRESS   OF  LAWYERS  AND   JURISTS 

point  out  that  in  addressing  you  now  on  the  said  subject,  I  do 
not  speak  as  a  representative  of  the  said  government,  but  only 
as  a  private  person,  a  jurist  developing  his  personal  ideas. 

I  am  proud  to  have  to  speak  on  the  said  subject  in  this 
country  and  on  this  spot.  No  country  of  the  world  is  so  near 
as  the  United  States  to  the  ideal  figure  of  an  organization 
affording  to  the  universal  community  of  mankind  Hberty  and 
justice  under  equitable  laws.  No  assembly  can  be  considered 
as  the  juridical  conscience  of  the  world,  with  more  right  than 
this  Congress,  when  the  learned  jurists  of  all  the  nations  are 
forming  the  highest  court  of  international  equity  that  ever  took 
seat. 

But  the  subject  is  very  extensive  in  every  dimension.  It 
is  long  in  its  historical  causes,  broad  in  its  results,  high  in  the 
expectations  of  its  future.  If  I  should  try  to  say  everything 
that  could  be  said,  it  would  require  a  volume  with  as  many 
chapters  as  I  have  minutes  at  my  disposal.  So  I  must  refrain 
from  any  profusion  of  particulars,  and  only  attempt  to  give 
you,  in  a  methodical  way,  a  summary  of  the  leading  ideas. 
This  methodical  way  will  lead  us  along  three  groups  of  ideas: 
the  historical  causes  of  the  conferences,  the  results  attained,  and 
the  results  to  be  expected  in  the  future.  I  will  divide  my 
summary  in  the  said  three  parts,  and  try  to  be,  if  possible,  not 
too  long  in  the  exposition  of  historical  causes,  not  too  broad  in 
the  development  of  results  attained,  and  not  too  high  in  the 
idealization  of  the  future. 

The  direct  cause  of  The  Hague  Conferences  was  an  invita- 
tion of  the  Government  of  the  Netherlands,  addressed  to  the 
other  European  governments.  A  more  remote  cause,  which  may 
be  considered,  too,  as  the  reason  of  the  success  of  the  invitation, 
was  the  general  conviction  among  the  nations  that  the  extension 
of  international  intercourse  had  more  and  more  rendered  intol- 
erable the  absence  of  a  codification  of  private  international  law. 

Private  international  law  is  the  law  regulating  private  rela- 
tions between  individuals  in  a  community  larger  than  a  nation, 
or,  more  exactly,  larger  than  a  group  of  men  Hving  in  the  same 


PAPER   OF   PROFESSOR   JITTA  119 

territory,  and  subjected  to  the  same  legislation  and  jurisdiction. 
Relations  of  this  kind  spread  themselves  over  the  whole  private 
lavi^,  but  there  are  two  species  of  international  relations  that 
occur  more  frequently  than  others,  namely :  Relations  of  trade, 
and  relations  of  marriage.  The  international  trade  has  created 
relations  of  law  by  the  exchange  of  the  natural  and  artificial 
products  of  the  different  countries,  and  the  divine  feeling  of 
love,  much  mightier  than  the  commercial  spirit,  has  brought 
together  the  sons  and  the  daughters  of  the  various  groups  of 
mankind. 

International  intercourse  is  not  practically  interrupted  by  the 
boundaries  of  the  national  groups.  But,  in  a  judicial  sense, 
the  division  of  the  earth  among  powers  exercising  supreme 
rights  of  legislation  and  jurisdiction  in  certain  territories, 
checks  the  development  of  a  lawful  intercourse,  by  rendering 
the  substantive  law  of  private  relations  uncertain  and  the 
sound  exercise  of  jurisdiction  problematic. 

If  we  consider  more  specially  the  two  mentioned  principal 
species  of  relations,  trade  and  marriage,  we  find  between  those 
species  differences  sufficient  to  make  clear  why  international 
trade  needs  more  a  regulation  of  the  international  procedure, 
and  the  marriage  more  a  regulation  of  the  international  law. 

It  is  certainly  a  fact  that  the  national  laws  on  trade  vary, 
often  very  sensibly,  and  that  a  certain  uniformity  is  highly 
desirable.  I  point  out,  furthermore,  that,  as  there  are  no  great 
religious  and  philosophical  disputes  in  the  greatest  part  of  the 
commercial  law,  for  instance  in  the  matter  of  bills  of  exchange, 
or  sea  traffic,  a  unification  of  the  merchant  law  would  be  attain- 
able. But  I  must  add  that  the  discrepancies  in  the  different 
commercial  laws  of  the  nations  do  not  lead  to  an  almost  intol- 
erable situation,  because  all  the  laws  are  founded  on  the  binding 
power  of  regular  contracts,  and  the  contracting  power  of  parties, 
although  not  absolutely  unlimited,  is  so  great  in  commercial 
matters  that  the  inconveniences  of  the  variety  may  be  withdrawn 
to  a  certain  degree.  But  the  international  credit  is  almost 
ruined   when,  in  the  international  intercourse,  the  creditor  is 


I20     CONGRESS   OF  LAWYERS  AND   JURISTS 

not  sure  to  be  admitted  as  claimant  in  foreign  courts,  and  when 
the  regular  judgment  in  his  favor  is  not  enforced  and  executed 
by  the  foreign  authority,  which  has  a  power  of  fact  on  the 
debtor's  property.  No  contract  between  individuals  can  regu- 
late this  matter  of  public  policy,  and  so  it  is  clear  that  only  an 
international  agreement  on  the  matter  of  jurisdiction  and 
execution  can  give  to  the  international  credit  a  sound  basis. 

With  regard  to  marriage  and  domestic  relations  connected 
with  marriage,  the  position  is  quite  different.  So  far  as  the 
conditions  of  validity  of  a  marriage,  the  admissibihty  of  divorce 
or  separation,  etc.,  are  matters  of  legislation,  there  is  no  room 
for  the  contracting  power  of  parties,  and  if  the  law  is  dubious  in 
the  international  intercourse,  an  international  agreement  of  the 
pubhc  powers  is  the  only  way  to  come  to  rules,  extending  their 
authority  over  more  than  one  territory.  On  the  other  side,  the 
discrepancies  of  the  laws,  in  the  mentioned  matters,  are  often 
founded  on  religious  faith.  So  long  as  this  will  be  the  case, 
uniformity  of  the  laws  on  marriage  and  divorce  is  unattainable ; 
a  law,  considered  as  an  emanation  of  the  will  of  an  Almighty  and 
Infallible  Being,  cannot  be  amended.  Therefore,  the  only 
result  attainable  here  by  international  agreement  is  a  certain 
harmony  in  the  application  of  various  national  laws. 

So  the  combination  of  the  elements  "desirability"  and 
"  attainabiHty "  leads,  in  matters  of  trade,  to  common  rules 
of  jurisdiction  and  execution  of  judgments,  and  in  matters  of 
marriage  and  domestic  relations  to  common  rules  of  harmony. 

The  whole  nineteenth  century  has  been  a  preparation  of 
the  needed  common  rules.  Science  in  general,  and  the  philoso- 
phy of  social  science  in  particular,  has  become  more  and  more 
the  common  patrimony  of  the  nations,  and  so,  finally,  the  gov- 
ernments came  to  the  conviction  of  common  duties  towards 
the  juridical  community  of  mankind.  For  Europe,  the  invita- 
tion of  the  Government  of  the  Netherlands  has  been  accepted, 
because  it  came  at  the  right  time,  and  I  may  add,  not  without 
a  little  pride,  that  the  success  of  the  Conferences  was,  for  a  great 
deal,  a  result  of  the  fact  that  my  native  country  has  found  as 


PAPER    OF    PROFESSOR   JITTA  121 

chairman  of  the  Conferences  the  right  man,  the  distinguished 
Dutch  jurist  and  statesman,  Asser,  glorified  by  his  work  more 
than  words  can  do. 

Four  Conferences  have  been  held  at  The  Hague  for  the 
codification  of  private  international  law,  between  1893  and 
1904.  Four  general  treaties  have  been  put  in  force  in  a  good 
deal  of  the  European  Continent,  and  several  others  have  been 
established  in  draft.  I  shall  take  the  liberty,  according  to  the 
English  practice,  to  give  short  titles  to  these  treaties,  and  to 
design  each  treaty  by  its  title  in  my  further  explanations.  The 
four  treaties  in  force  are:  One  treaty  on  civil  procedure  and 
three  treaties  on  substantive  subjects:  validity  of  marriage, 
divorce,  and  guardianship.  The  four  treaties  in  draft  relate 
to  succession,  relations  between  husband  and  wife,  lunacy,  and 
bankruptcy. 

I  have  to  give  you  a  general  idea  of  the  principles  on  which 
the  treaties  are  founded.  My  intention  is  to  be  very  short  for 
the  treaty  on  civil  procedure,  as  being  more  a  technical  subject, 
and  to  call  more  particularly  your  attention  to  the  matter  of 
validity  of  marriage  and  divorce,  subjects,  as  I  think,  of  great 
interest  for  the  interstate  relations  in  the  United  States.  The 
leading  principles  of  the  marriage  and  divorce  treaties  will 
be  found,  too,  in  the  other  treaties.  So  I  hope  to  spare  you  the 
tedious  work  of  an  inventory. 

The  civil  procedure  treaty  has  been  the  first  result  of  the 
work.  It  was  concluded  in  1896,  and  now,  after  the  experience 
of  several  years,  a  draft  for  a  revision  has  been  prepared  in 
1904.  However,  even  after  the  approbation  of  the  amendments, 
the  treaty  will  be  only  a  modest  beginning  of  a  regulation. 
The  best  way  to  make  this  clear  will  be  a  comparison  between 
the  ideal  of  a  regulation  and  the  attained  result. 

An  ideal  regulation  would  have  to  establish  universal  rules 
of  jurisdiction,  and  to  secure  everywhere  the  execution  of  judg- 
ments, regularly  pronounced  between  the  limits  of  this  juris- 
diction. The  final  result  would  be  for  the  civilized  world 
what  the  Constitution  of  the  United  States  has  estabhshed  for 


122      CONGRESS   OF   LAWYERS  AND   JURISTS 

the  interstate  relations,  that  judicial  proceedings  in  one  country 
should  have  full  faith  and  credit  in  all  the  other  countries. 

It  was  very  difficult  to  come  to  an  agreement  on  universal 
rules  of  jurisdiction,  and  no  serious  attempt  could  be  made  to 
constitute  a  supreme  court  for  the  vi^orld,  having  authority  to 
enforce  the  rules.  So  the  Conference  found  it  better  to  go 
ahead  with  prudence,  and  to  secure  in  the  first  place  an  agree- 
ment on  indisputable  points.  There  are  no  rules  of  jurisdiction 
in  the  treaty,  and  only  with  regard  to  a  very  special  point  a 
disposition  is  given  for  the  execution  of  foreign  judgments,  but 
the  treaty  has  elaborated  a  series  of  rules,  the  principal  of  which 
are  the  regulation  of  the  position  of  citizens  of  the  contracting 
countries  (or  persons  assimilated  to  these)  acting  as  plaintiffs 
or  defendants  in  other  contracting  countries,  the  regulation  of 
the  service  of  summons  on  non-resident  defendants,  and  the 
statement  of  the  international  duty  to  give  effect  to  rogatory 
commissions  of  foreign  courts.  This  series  of  regulations  con- 
stitutes a  very  valuable  preparation  of  the  future  ideal. 

The  leading  principles  of  the  Conference  work  may  easily 
be  found  in  the  treaties  on  the  validity  of  marriage,  on  divorce, 
and  on  guardianship,  and  my  intention  is  to  point  out  these 
principles. 

I  begin  with  the  treaty  on  the  validity  of  marriage. 

Marriage,  to  be  sure,  may  be  considered  as  an  institution  of 
the  unwritten  common  law  of  the  world.  Very  often  marriage 
is  contracted  between  citizens  of  various  countries.  Moreover 
there  is  an  almost  unlimited  right  of  emigration  and  immigra- 
tion of  married  and  unmarried  individuals,  and  the  conse- 
quence is  that  the  validity  of  an  intended  or  contracted  mar- 
riage may  be  questioned  in  a  foreign  country. 

But  it  is  a  fact  that  the  law  of  marriage  varies  considerably 
in  the  dift'erent  countries  of  the  world.  The  cause  of  these 
varieties  is  undoubtedly  that  marriage  is  not  only  a  contract 
between  a  man  and  a  wife,  but  also  the  foundation  stone  of 
social  life.  Therefore  the  social  powers  have  endeavored  to 
control  marriage  to  a  certain  degree.     Conditions  relating  to 


PAPER   OF    PROFESSOR   JITTA  123 

age,  consanguinity,  monogamy,  consent  of  parents,  etc.,  have 
been  imposed  on  men,  and  very  generally,  if  not  everywhere,  the 
laws  have  estabhshed  a  solemnization  of  marriage,  not  only  to 
facilitate  the  proof,  but  also  as  a  means  to  research  if  the  material 
conditions  are  fulfilled,  and  to  prevent  void  or  voidable  mar- 
riages. The  said  conditions  and  forms  of  solemnization  are 
very  ancient;  the  necessity  to  control  marriage  existed  already 
in  patriarchal  times  and  in  the  midst  of  tribes  and  so  the  habit 
of  many  centuries  has  given  to  various  rules  a  real  consecration. 
The  roots  of  many  old  rules,  besides,  extend  themselves  to  the 
time  in  which  the  social  powers  were  exercised  by  the  churches, 
and  this  connection  with  the  holy  law  of  God  excludes  any 
amendment.  There  was  no  hope  for  the  Conference  to  come  to  a 
unification  of  the  marriage  laws  of  the  nations,  but  the  Confer- 
ence had  to  examine  the  question  if  it  would  be  possible  to 
establish  uniformity  with  regard  to  a  rule  referring  for  the 
validity  of  each  intended  or  contracted  marriage,  to  a  definite 
law.     In  that  way  harmony  in  the  diversity  could  be  attained. 

The  Conference  had  not  to  imagine  such  a  rule.  In  scientific 
works  and  in  several  positive  laws,  principles  for  the  solution  of 
so-called  conflicts  of  laws  in  the  matter  of  marriage  are  to  be 
found  with  a  very  important  distinction  between  the  material 
conditions  of  validity  and  the  external  conditions  of  the  solem- 
nization. As  the  rule  relating  to  the  material  conditions  is  the 
center  of  the  difficulty,  I  begin  with  that  rule.  Three  principles 
have  found  less  or  more  attendants.  The  material  conditions 
of  the  validity  of  a  marriage  may  depend:  either  from  the 
national  law  or  laws  of  the  parties,  or  from  the  law  of  their 
domicile  or  domiciles;  or,  at  last,  from  the  law  of  the  country 
where  the  marriage  is  contracted,  or  solemnized. 

If  we  examine  the  philosophical  basis  of  these  three  prin- 
ciples, we  find  that  there  are  really  but  two  leading  thoughts. 
As  the  man  and  the  woman  have  the  liberty  to  change  their 
domicile,  or  to  elect  the  place  of  solemnization,  the  two  last 
principles  are  emanations  of  a  free  selection,  to  be  exercised 
by  the  indi\aduals.     On  the  contrary,   as  nationality  is  the 


124     CONGRESS   OF  LAWYERS   AND   JURISTS 

result  of  allegiance,  and  cannot  be  changed  by  the  mere  will  of 
individuals,  the  first  principle  is  an  emanation  of  the  subjection 
of  individuals  to  the  law  of  a  territorial  group.  The  choice,  to 
be  made  by  the  Conference,  was  also  a  choice  between  the  prin- 
ciple oj  free  individual  selection,  and  the  principle  oj  national 
subjection. 

I  have  not  to  express  a  critical  opinion  on  the  matter,  but 
I  point  out  that  the  Conference  adopted,  as  a  general  rule,  the 
principle  of  subjection,  in  accordance  with  the  existing  civil 
law  of  France,  Italy,  and  Germany.  So  the  treaty  does  enact 
that  citizens  of  one  of  the  contracting  countries  are  admitted 
or  not  admitted  to  marriage  in  another  contracting  country,  in 
as  far  as  the  national  laws  of  the  parties  admit  or  do  not  admit 
a  vahd  marriage  in  the  circumstances  of  the  case.  Only,  as  it 
was  not  necessary  to  give  to  a  national  law  more  authority  than 
it  claims,  the  treaty  provides  that,  when  the  national  law  of  a 
country  does  refer,  for  the  citizens  of  the  country,  to  another 
law  than  the  national  law,  for  instance  to  the  law  of  domicile, 
this  last  law  will  be  followed  everywhere  for  these  citizens. 

The  last  clause  is  not  properly  an  exception,  but  only  a 
modification  in  the  application  of  the  leading  thought;  there 
are,  however,  exceptions.  In  a  few  cases  connected  with 
religion  and  social  policy,  and  expressly  stated  in  the  treaty,  a 
country  may  refuse  to  celebrate  a  marriage  admitted  by  the 
national  laws  of  foreigners,  or  even  celebrate  a  marriage  in 
cases  excluded  by  these  laws. 

With  regard  to  the  external  form  of  the  solemnization  the 
difficulty  was  not  so  great.  A  general  rule  could  be  stated,  in 
conformity  with  an  ancient  principle,  referring  to  the  law  of 
the  place  of  the  solemnization.  Some  exceptions  are  admitted. 
The  most  remarkable  is  certainly  the  clause  that  a  country 
which  requires  for  its  own  citizens  a  religious  solemnization  is 
not  bound  to  recognize  the  validity  of  marriages  contracted  by 
the  citizens  abroad  in  another  form. 

I  have  given  you  without  multipUcity  of  detail,  a  general 
idea  of  the  treaty  on  the  validity  of  marriage.     I  come  now  to 


PAPER   OF    PROFESSOR   JITTA  125 

the  divorce  treaty,  and  shall  try  to  explain  its  leading  thought 
in  the  same  spirit.  The  treaty  includes  separation,  but,  as  I 
follow  only  the  main  line,  I  will  speak  only  of  divorce.  The 
difference  is  well  known  to  everybody,  and  the  leading  principle 
is  the  same. 

The  necessity  of  a  social  control  is  still  more  evident  in  the 
matter  of  divorce  than  marriage.  Even  the  civil  laws,  which 
consider  marriage  as  a  private  contract,  requiring  only  the 
consent  of  the  parties,  do  not  admit  a  dissolution  of  a  marriage 
without  intervention  of  social  powers.  The  laws  of  the  civil- 
ized nations  agree  in  this  point,  but  it  is  the  only  point  in 
which  they  agree.  The  laws  on  divorce  show  still  greater  dis- 
crepancies than  the  marriage  laws.  In  several  countries 
divorce  is  absolutely  excluded,  as  contrary  to  the  law  of  God, 
and  separation  is  the  only  remedy.  When  divorce  is  permitted, 
the  conditions  vary.  Sometimes  there  is  but  one  legal  cause, 
adultery,  while  other  laws  have  a  long  series  of  causes;  inhuman 
treatment,  abandonment,  penal  sentences,  and  even  insanity. 
Mutual  consent,  earnestly  affirmed  by  the  parties  before  a 
court,  is  sufficient  in  some  countries.  Uniformity  with  regard 
to  the  admission  and  the  conditions  of  divorce  was  not  attain- 
able for  the  Conference,  but  it  had  to  consider  two  important 
questions  of  harmony: 

1.  The  admissihility  0}  divorce  for  parties  residing  in  a  country 
other  than  their  native  country. 

2.  The  jurisdiction  to  he  recognized  in  the  matter  by  the  con- 
tracting countries. 

The  answer  to  be  given  to  the  second  question  depends 
upon  the  solution  of  the  first  question. 

In  accordance  with  the  principle  of  national  subjection, 
admitted  for  marriage,  the  treaty  excludes  divorce  when  it  is 
excluded  by  the  national  law  of  parties;  no  change  of  residence 
can  alter  this,  even  after  a  long  time.  NaturaHzation  only 
can  help,  with  the  intervention  of  foreign  authorities.  But  this 
is  but  a  part  of  the  rule.  In  countries  where  divorce  is  excluded 
as  contrary  to  the  law  of  God,  it  is  almost  impossible  to  grant 


126     CONGRESS   OF  LAWYERS  AND   JURISTS 

it  to  foreigners  residing  in  the  country.  It  is  a  case  of  con- 
science. The  Conference  resolved  to  respect  to  the  utmost 
degree  religious  faith,  and  stated  also  that  no  country  would 
be  bound  to  grant  a  divorce,  in  cases  not  admitted  by  its  own 
law.  The  final  result  was,  for  divorce  (and  separation)  a 
principle  of  double  subjection,  national  subjection  and  subjection 
to  the  law  of  the  country  where  the  suit  is  introduced.  Both 
laws  must  admit  divorce.  It  is  not  absolutely  necessary  that 
there  be  a  cause  admitted  by  both  laws;  if  there  are  two  causes, 
one  of  which  is  sufficient  according  to  the  national  law  of  the 
parties,  and  the  other  one  according  to  the  law  of  the  court,  a 
decree  of  divorce  must  be  granted.  Furthermore,  the  law  of 
a  country  may  prescribe  that  the  national  law  of  the  parties  will 
be  followed,  even  when  it  does  not  agree  with  the  law  of  the 
court. 

In  the  matter  of  jurisdiction  for  divorce,  the  Conference  has 
followed  the  fine  of  national  subjection.  The  courts  of  the 
nation  to  which  the  parties  belong  are  empowered  with  juris- 
diction, even  when  parties  are  residing  abroad;  and  the  juris- 
diction may  be  rendered,  by  the  national  law  of  parties,  exclusive 
of  any  other.  When  this  exclusion  has  not  been  stated,  the 
court  of  the  place  of  residence  will  have  jurisdiction,  according 
to  special  rules,  stated  in  the  treaty. 

The  natural  conclusion  of  the  material  and  formal  rules,  in 
the  matter  of  divorce,  is  that  a  divorce,  regularly  granted  accord- 
ing to  the  treaty,  in  one  of  the  contracting  countries,  against  a 
party  who  contested  or  was  duly  summoned,  is  to  be  recognized 
in  all  the  contracting  countries.  The  other  clauses  of  the 
divorce  treaty,  relating  to  changes  of  the  nationality  of  parties, 
or  to  differences  between  the  nationality  of  the  husband  and 
that  of  the  wife,  I  consider  as  details,  and  only  mention  them. 

The  last  of  the  three  general  treaties,  put  in  force  in  1904, 
relates  to  guardianship  0}  injants. 

The  leading  principle  is  here  also,  national  subjection. 
Guardianship  is  governed,  as  a  rule,  by  the  national  law  of  the 
infant,  even  when  the  infant  resides  abroad,  and  this  rule  extends 


PAPER   OF   PROFESSOR   JITTA  127 

its  effect  to  the  whole  of  the  estate  of  the  infant,  personal  or 
real,  with  an  exception,  not  for  lands  in  general,  but  only  for 
one  category  of  lands,  lands  for  which  the  law  of  the  country 
of  situation  has  estabhshed  a  special  rule.  The  exception  con- 
firms the  rule. 

But  the  apphcation  of  the  principle  of  national  subjection 
to  the  matter  of  guardianship  shows  a  particularity,  which  is 
to  be  noticed,  and  to  which  I  call  your  attention. 

The  laws  on  guardianship,  in  force  in  the  civiHzed  countries, 
are  not  without  discrepancies,  but  these  discrepancies  do  not 
depend  upon  religious  and  social-philosophical  disputes,  as  is 
the  case  in  the  matter  of  marriage  and  divorce;  the  laws  only 
follow  different  ways,  directed  to  the  same  aim,  to  secure  the  best 
protection  of  the  infant's  interests.  There  would  be  no  insur- 
mountable objection  against  international  uniformity.  But 
far  more  important  than  the  question  of  uniformity  is  the  ques- 
tion how  to  secure,  in  the  international  intercourse,  protection 
for  each  infant  that  needs  it  and  is  residing  in  a  foreign  country. 
This  is  the  cardinal  point.  And  when  we  bear  that  in  mind  it 
is  easy  to  understand  why  the  treaty,  although  it  gives  jurisdic- 
tion, in  the  first  instance  to  the  courts  of  the  native  country  of 
the  infant,  has  by  no  means  considered  the  national  courts  as 
exclusively  empowered  with  jurisdiction.  The  courts  of  the 
country  where  the  infant  is  residing  have  jurisdiction,  too.  They 
have  the  right  and  it  is  their  duty  to  take,  in  every  case,  pro- 
visional measures  of  protection,  and  even  to  provide  for  the  guar- 
dianship, when  the  national  courts  are  not  acting.  Only  it  has 
been  exacted  that  the  local  guardianship  has  to  cease  when  a 
national  guardianship  has  been  organized. 

The  treaties  on  the  validity  of  marriage,  on  divorce,  and  on 
guardianship  are  in  force.  The  ratifications  were  exchanged, 
on  June  i,  1904,  between  the  governments  of  the  Netherlands, 
Germany,  Belgium,  France,  Luxemburg,  Roumania,  and 
Sweden,  and  according  to  the  tenor  of  the  treaties,  they  came 
into  force  on  the  ist  of  August.  The  accession  of  several  other 
European  countries  is  expected. 


128     CONGRESS   OF   LAWYERS  AND   JURISTS 

As  I  said,  the  Conference  of  1904  has  elaborated,  besides  the 
mentioned  draft  of  the  amendment  of  the  civil  procedure  treaty, 
four  new  drafts  of  treaties,  to  which  I  have  given  the  short 
titles  of  treaties  on  succession,  on  relations  between  husband  and 
wife,  on  lunacy,  and  on  bankruptcy.  I  fear  it  would  be  tedious 
to  enter  into  a  long  analysis  of  the  last  four  treaties,  and  I  beg 
to  make  only  a  few  remarks. 

The  draft  treaties  on  the  relations  between  husband  and 
wife  and  on  lunacy  are  applications  of  the  principle  of  national 
subjection,  with  the  modifications  needed  by  the  consideration 
that  parties  residing  in  a  foreign  country  cannot  entirely  be 
exempted  from  the  authority  of  local  laws  and  local  courts. 

With  regard  to  relations  between  husband  and  wife,  the 
patrimonial  relations  were  the  seat  of  the  greatest  difficulty.  In 
pure  social  philosophy,  the  necessity  that  marriage  should  bring 
any  change  in  the  property  of  parties  or  alter  the  capacity  of  the 
wife — the  jeme  covert  of  the  ancient  Norman-English  law — may 
be  disputed;  practically  many  laws  have  dispositions  in  the 
said  spirit,  with  the  greatest  variety  in  the  details.  Uniformity 
was  not  easy  to  obtain,  and  there  was  no  lady  among  the  mem- 
bers of  the  Conference.  The  fact  is  that  no  attempt  was  made 
to  come  to  uniformity,  and  the  draft  treaty  refers,  in  general, 
to  the  national  law  of  the  husband  at  the  time  of  the  marriage. 
The  draft  has  also  many  special  clauses,  regulating  the  form, 
the  contents,  and  the  registration  of  ante-nuptial  or  even  post- 
nuptial contracts  on  patrimonial  relations,  etc.,  etc. — but  I 
resist  the  temptation  to  wander  into  by-ways. 

The  draft  treaty  on  lunacy,  and  similar  cases  of  incom- 
petency, is  established  on  the  same  basis  as  the  treaty  on  guar- 
dianship. The  necessity  to  give  to  local  courts  at  least  a 
subordinate  jurisdiction  was  even  more  strict  here  than  in  the 
case  of  minority,  the  presence  of  a  lunatic  being  often  a  pubHc 
danger.  The  treaty  contains  also  rules  on  jurisdiction,  the 
effects  of  a  regular  decree  for  the  entire  estate  of  the  lunatic, 
personal  and  real,  the  exterritorial  publication  of  decrees,  etc. 

Of  all  the  new  drafts,  the  treaty  on  succession  is  the  most 


PAPER    OF    PROFESSOR    JITTA  129 

noteworthy.  It  is  not  only  an  attempt  to  establish,  with  great 
respect  for  the  individuality  of  national  laws,  a  certain  degree 
of  harmony,  it  has,  on  the  contrary,  dehberately  rejected  an 
old  rule,  which  in  some  countries  has  already  lost  its  strength, 
but  it  is  still  considered,  in  other  countries,  as  consecrated  by 
the  practice  of  many  centuries.  I  mean  the  rule  that  real 
property  is  only  subjected  to  the  law  of  its  location.  The  main 
point,  the  focus  of  the  draft  treaty  in  question,  is  a  combination 
of  the  principle  of  national  subjection  with  the  principle  of  the 
unity  of  the  estate  of  the  deceased.  The  national  law  of  the 
deceased  governs  the  whole  testamentary  and  legal  succession, 
excepting  the  external  form  of  the  will,  which  form  is  generally, 
but  not  even  exclusively,  submitted  to  the  law  of  the  country 
where  the  will  is  made.  With  regard  to  lands  a  few  reserva- 
tions have  been  stated  for  local  laws,  enacted  with  the  sole  aim 
to  prevent  the  division  of  rural  goods,  or  relating  to  special 
categories  of  lands,  but  it  is  expressly  provided  that  none  of 
the  contracting  countries  will  have  the  power  to  make  an  excep- 
tion for  lands  in  general.  The  jurisdiction,  in  matters  of  suc- 
cession, will  be  the  object  of  a  special  agreement,  to  be  elaborated 
in  a  further  conference. 

The  last  draft,  contained  in  the  final  protocol  of  1904,  relates 
to  bankruptcy.  The  aim  of  the  treaty  is  to  give  rules  of  juris- 
diction for  a  decree  of  bankruptcy,  and  to  secure  the  full  effect 
of  that  decree  in  foreign  countries,  for  the  common  benefit  of 
all  the  creditors,  foreign  and  domestic.  Jurisdiction  has  only 
been  fixed  for  traders,  and  given  to  the  courts  of  the  country 
within  which  the  bankrupt  has  his  principal  commercial  estab- 
Hshment,  or,  in  the  case  of  a  corporation,  its  seat,  without  fraud 
or  fiction.  The  other  features  of  the  draft  are  relative  to  the 
extraterritorial  powers  of  trustees  or  receivers,  and  to  the 
general  binding  power  of  a  regular  composition  between  the 
bankrupt  and  his  creditors.  I  have  to  add  that,  as  the  idea  of 
a  general  treaty  on  bankruptcy  encountered  objections,  that  idea 
was  abandoned,  and  the  Conference  declared  that  the  draft  had 
only  to  be  considered  as  the  outhnes  of  an  agreement,  to  be 


I30     CONGRESS   OF  LAWYERS  AND   JURISTS 

concluded  between  two  or  more  nations  on  the  basis  of  a  more 
special  mutual  confidence. 

I  have  tried  to  give  you,  Mr.  President,  Ladies  and  Gen- 
tlemen, a  bird's-eye  view  of  the  pre-eminent  parts  of  the  Con- 
ference work,  and  would  beg  to  give  also  a  few  considerations 
with  relation  to  the  future.  Although  j)ersonally  I  am  an 
ideahst,  I  do  not  wish  to  be  visionary,  and  I  will  try  only  to 
make,  logically  and  calmly,  deductions  from  present  to  future 
events. 

As  it  is  far  easier  to  make  these  deductions  for  the  European 
Continent  than  for  the  rest  of  the  civilized  world,  I  will  make 
that  distinction.  For  the  Continent  of  Europe,  The  Hague  Con- 
ferences for  the  codification  of  private  international  law  have 
been  a  most  remarkable  event.     They  have  afforded: 

1.  A  working  body  of  men  of  good  will; 

2.  A  not  yet  perfect,  but  certainly  perfectible,  form  for 
collective  civil  legislation;    and 

3.  A  valuable  beginning  of  that  legislation. 

For  many  years  international  congresses  have  brought  to- 
gether men  and  ideas.  But  The  Hague  Conferences  have  done 
more;  they  have  assembled  representatives  of  the  national 
powers,  with  a  continuity  in  the  representation  most  favorable 
to  an  easy  understanding.  The  members  have  not  had  to 
work  under  pressure  of  time,  a  circumstance  often  so  disad- 
vantageous to  private  congresses,  and  they  have  had  serious 
hope  of  immediate  practical  results,  as  it  could  be  foreseen 
that  the  drafts  would  be  earnestly  considered  by  the  govern- 
ments. 

I  say  that  The  Hague  Conferences  have  afforded  a  practical 
form  for  collective  civil  legislation.  This  form  is  the  general 
treaty,  a  form  usual  in  the  public  international  law,  where 
states  are  contracting  parties,  but  not  so  perfectly  suited  to  the 
regulation  of  private  law  relations.  We  must  bear  in  mind 
that,  in  the  absence  of  a  federal  legislative  power  for  Europe, 
no  real  supra-national  statute  could  be  enacted.  The  Conference 
was  obliged  to  choose  between  the  surrogates  of  the  supra-na- 


PAPER   OF   PROFESSOR   JITTA  131 

tional  statute,  and  therefore  to  use  either  a  system  of  uniform 
national  laws  or  a  general  treaty.  The  choice  has  been  in 
favor  of  the  general  treaty,  a  form  affording  contractual  reci- 
procity. The  treaty  form  may  have  imperfections,  but  the 
practice  opens  the  way  to  betterments. 

If  we  take  into  consideration  the  fact  that  no  general  treaty 
could  be  concluded  without  the  unanimous  consent  of  all  the 
parties,  and  that  it  was  absolutely  necessary,  consequently,  to 
respect  with  the  greatest  care  the  religious  feelings  and  the 
juridical  individuality  of  the  nations,  we  must  recognize  that, 
in  the  difficult  matter  of  domestic  relations,  most  valuable 
results  have  been  attained. 

My  conclusion  is,  as  far  as  the  European  Continent  is  con- 
cerned, that  a  further  development  of  the  work  may  be  expected, 
leading  to  an  international  union  lor  the  codification  0}  private 
international  law.  I  dare  say  nothing  more.  It  would  be 
possible  to  see  in  the  Conferences  the  first  step  towards  a 
federal  parliament  for  Europe,  which  would  include  an  over- 
rufing  of  the  minority  by  the  majority;  but,  although  I  am  not 
personally  adverse  to  this,  I  consider  it  as  a  matter  of  philo- 
sophical faith,  and  not  as  a  logical  deduction  from  present  to 
future  events. 

I  have  spoken  till  now  of  the  European  Continent,  but  cer- 
tainly the  question  will  arise  if  an  accession  to  The  Hague 
treaties  would  be  desirable  and  attainable  for  what  I  take  the 
liberty  of  calhng  the  rest  of  the  civilized  world,  and  particularly 
for  the  states  of  North  and  South  America.  In  a  general 
sense,  I  may  state  that  a  world  union  would  be  desirable.  But 
there  are  objections.  I  shall  not  attempt  to  examine  the  whole 
of  the  imaginable  objections.  Some  objections  may  concern  the 
constitutional  law  of  a  country,  and  the  learned  men  of  that 
country  are  the  best  interpreters  in  that  case.  Other  objections 
may  be  derived  from  religion,  and  are  not  removed  by  logic 
only.  But  I  will  not  avoid  the  main  objection,  resulting  from 
disputes  on  leading  thoughts.  In  the  matter  of  civil  procedure 
we  do  not  find  disputes  of  that  kind ;  the  regulation  is  a  question 


132      CONGRESS   OF   LAWYERS  AND   JURISTS 

of  mutual  confidence.  But  in  the  matter  of  domestic  relations 
and  succession  there  are  at  least  two  great  controversies.  I 
have  in  Y'lew:  The  principle  of  national  subjection  (nationality) 
in  opposition  to  the  principle  of  free  selection  (domicile) ;  and 
the  principle  of  the  unity  of  the  estate  in  opposition  to  the  dis- 
tinction between  movable  and  immovable  property. 

Let  us  begin  with  the  opposition  between  subjection  and 
selection,  or,  if  you  like,  between  nationality  and  domicile. 

Would  it  be  possible  to  move  the  countries  belonging  to 
the  group  "domicile"  to  accede  to  the  group  "nationality"? 

My  opinion  is,  that  it  would  be  most  difficult  to  obtain  a 
complete  accession,  but  that  it  would  be  possible  to  find  a  com- 
promise, giving  to  nationality  and  to  domicile  a  separate  domain. 
When  we  consider  the  question  "nationality  or  domicile"  from 
the  point  of  view  of  a  single  nation,  enacting  rules  in  its  own 
national  law,  as  an  instruction  for  national  courts  in  matters  of 
international  intercourse,  it  is  easy  to  make  out  which  consid- 
erations will  lead  the  choice.  When  a  nation  has  the  same 
civil  law  for  the  subdivisions  of  its  territory,  and  when  this 
national  law  bears  a  clearly  marked  national  individuaUty, 
connected  with  religion  and  secular  practice,  and  limiting  con- 
siderably, in  the  interest  of  social  policy,  the  liberty  of  the 
individuals,  such  a  nation  cannot  admit  that  its  own  citizens 
should  be  able  to  elude  the  national  law,  for  instance  in  the 
matter  of  marriage  and  divorce,  by  a  simple  emigration.  The 
principle  of  nationahty  is  then  the  most  natural  rule  for  citizens 
residing  abroad.  On  the  other  hand,  when  various  laws  are 
in  force  for  the  different  subdivisions  of  the  territory,  as  is  the 
case  in  several  federations,  there  will  be  no  objection  to  a  rule 
allowing  a  free  selection  on  the  part  of  the  individuals  of  the 
local  civil  law  under  which  they  choose  to  live,  as  none  of  these 
laws  may  be  considered  as  absolutely  contrary  to  social  policy. 
So  we  find  most  in  federations  or  in  countries  with  plurahty  of 
local  civil  laws  the  principle  of  domicile.  Germany  is  the 
best  illustration  of  this  distinction.  So  long  as  there  have  been 
many  various  local  civil  laws  in  Germany,  the  principle  of 


PAPER   OF   PROFESSOR   JITTA  133 

domicile  has  prevailed,  but  after  the  general  codification  of 
1900,  the  principle  of  nationahty  has  been  adopted. 

An  international  agreement  cannot  admit,  at  the  same  time 
and  for  the  same  points,  the  full  force  of  both  principles,  but  it 
could  make  of  the  two  principles  parallel  rules,  not  unlike  the 
rails  of  a  railroad.  Some  points  could  be  governed  by  the  nation- 
al laws  for  citizens  abroad,  and  other  points  by  the  laws  of  their 
domicile.  The  Hague  treaties,  especially  in  the  matter  of  mar- 
riage and  divorce,  have  already  acted  in  this  spirit.  But  a  result 
still  greater  could  be  attained,  if  an  agreement  could  be  arrived 
at  as  to  the  exact  definition  of  the  juridical  expressions  "nation- 
ality" and  "domicile."  The  main  objection  of  reasonable 
adherents  to  "nationahty"  to  the  domicile  rule  does  not  so 
much  concern  the  possibility  of  a  change  of  the  civil  law  relations 
during  the  life  of  men,  as  the  great  facihty  of  a  change  to  be 
obtained  by  simple  emigration.  Even  under  the  nationality 
rule,  a  change  can  be  obtained,  with  more  or  less  facility,  by  a 
naturalization.  Henceforth  the  objection  could  be  removed, 
if  the  change  of  the  civil  law  would  be  attached,  not  to  a  simple 
emigration,  but  to  a  reasonably  long  time  of  residence  abroad. 
The  long  residence  then  would  have  the  effects  of  a  naturaliza- 
tion, not  in  the  political  sense,  but  with  respect  to  points  of  civil 
law.  In  this  way  I  think  the  evolution  of  the  international 
private  law  could  run  forward  on  the  rails,  until  the  days  of  the 
substantive  uniformity,  a  far  remote  day,  as  I  fear,  on  account 
of  historical  causes  of  obstinate  conservatism,  in  the  matter  of 
the  family  law. 

Another  international  dispute  is  the  well-known  question  of 
the  devolution  of  lands,  in  the  matter  of  succession  and  other 
relations,  concerning  the  whole  of  a  man's  estate.  My  opinion 
is  that  here  also  an  agreement  is  attainable.  The  economical 
constitution  of  immovable  property  is  a  matter  of  local  policy, 
and  therefore  it  must  not  be  possible  to  acquire  on  lands  other 
rights  than  those  admitted  by  the  local  law;  and  it  is  necessary 
to  state  also  that  the  external  conditions,  enacted  by  the  local 
law  in  the  social  interest,  must  be  observed,  but  I  do  not  see  the 


134     CONGRESS   OF   LAWYERS   AND   JURISTS 

necessity  to  submit  the  legal  succession  to  the  lands  belonging 
to  the  deceased  to  the  law  of  the  location  of  the  lands.  I  am 
aware  of  the  fact  that  a  regulation  in  this  spirit  involves  a 
partial  sacrifice  of  a  rule  consecrated  by  the  practice  of  many 
centuries,  but  if  the  sacrifice  could  be  reduced,  by  mutual  agree- 
ment, to  a  minimum,  and  compensated  by  sacrifices  on  the 
other  side  for  other  matters,  I  feel  confident  that  it  is  possible 
of  attainment. 

My  final  conclusion  is  that,  in  a  spirit  of  conciliation.  The 
Hague  Conferences  could  afford,  for  the  civilized  world  in 
general,  what  they  have  afforded  for  the  European  Continent :  a 
center  of  action  and  a  practical  form  for  collective  civil  legisla- 
tion. 

Accession  to  The  Hague  treaties,  or  at  least  the  participation 
in  further  conferences,  is  worth  being  taken  into  serious  con- 
sideration by  the  whole  of  the  civilized  world.  If  the  Universal 
Congress  of  Lawyers  and  Jurists,  assembled  at  St.  Louis,  could 
bring  that  participation  nearer  to  its  realization,  it  would  be  a 
noble  work  of  peace  and  justice,  and  a  boon  to  mankind. 
[Applause.] 

The  President: 

Doubtless  many  of  you  will  feel  such  interest  in  the  question 
so  ably  presented  by  Dr.  Jitta,  and  to  be  considered  and  dis- 
cussed hereafter  in  other  papers,  that  you  may  want,  some  of 
you  at  least,  to  join  in  the  discussion.  I  beg  leave  to  call  your 
attention  to  the  fact  that  the  rules  provide,  although  we  put  them 
aside  this  morning  in  order  to  have  some  general  talk,  that  those 
who  wish  to  take  part  in  the  discussion  shall  send  up  beforehand 
their  names  to  the  Chair,  in  order  that  they  may  be  called  upon, 
if  time  permits. 

I  now  have  the  pleasure  of  introducing  to  you  Professor 
Meili,  of  the  University  of  Zurich,  Switzerland,  who  will  con- 
tinue the  discussion  of  this  same  subject 


PAPER   OF    PROFESSOR   MEILI  135 

A  Review  of  the  Four  Hague  Conferences  on 
Private  International  Law,  the  Object  of  the 
Conferences,  and  Probable  Results, 

a  paper  by 

Dr.  F.  Meili,  Professor  in  the  University  of  Zurich, 
Switzerland,  a  Delegate-at-large : 

In  speaking  to-day  of  the  great  theoretical  progress  made 
by  international  law,  one  is  apt  to  think,  in  the  first  instance, 
of  the  Peace  Conference.  And  yet,  preceding  as  well  as  suc- 
ceeding it,  there  were  other  such  Conferences  of  no  less  impor- 
tance, though  dealing  with  the  regulation  of  international 
private  law.  These  Conferences  constitute  the  subject  of  this 
paper.  Almost  the  whole  of  Europe  assembled  at  The  Hague  in 
1893  and  1894  at  the  invitation  of  the  Government  of  the  Nether- 
lands; diplomats  and  international  jurists  represented  their 
governments  at  the  Conferences.  At  the  First  Conference  the 
following  countries  were  represented: 


I. 

The  German 

Empire. 

8. 

Luxemburg. 

2. 

AUSTRO-HUNG 

ary. 

9- 

Netherlands. 

3- 

Belgium. 

10. 

Portugal. 

4- 

Denmark. 

II. 

ROUMANIA. 

5- 

Spain. 

12. 

Russia. 

6. 

France. 

13- 

Switzerland. 

7- 

Italy. 

At  the  Second  Conference,  Sweden  and  Norway  also  par- 
ticipated. Servia  did  not  reply  to  the  invitation,  and  Greece 
excused  its  non-appearance.  Great  Britain  referred  to  the 
peculiar  nature  of  English  law  as  the  reason  for  not  sending 
delegates.  In  1900  all  the  countries  named  again  took  part. 
In  1904  (May  and  June),  a  delegate  appeared  representing  the 
Empire  of  Japan;  this  fact  was  a  surprise  to  certain  of  the 
delegates.  The  United  States  of  America,  as  also  South 
America,  have,  up  to  the  present,  taken  no  part  whatever  in 
the  Conferences. 


136      CONGRESS   OF  LAWYERS   AND   JURISTS 

Jurists  have  been  occupied  for  centuries  with  the  question 
as  to  what  principles  shall  apply  when  two  or  more  systems  of 
law  appear  to  be  applicable  to  the  solving  of  a  dispute  of  law; 
the  problem  arises  frequently  by  reason  of  the  great  mutual 
intercourse  between  subjects  of  the  different  states.  Histori- 
cally, the  question  dates  back  as  far  as  early  mediaeval  Europe, 
and  found  special  treatment  in  the  Italian  cities.  Among 
others,  the  question  was  taken  up  by  Bartolus  (1314-1355  or 
1357)  whom  Phillimore,  with  a  slight  exaggeration,  denotes  in 
his  Commentaries  upon  International  Law  (IV.,  3d  ed.,  p.  19) 
as  "the  fountain  of  private  international  jurisprudence.'" 
Later  it  was  the  so-called  Dutch  school  of  the  seventeenth 
century  which  developed  the  theory  of  the  collisio  staiutorum. 
Its  principal  proposition  was  that  basically  no  state  was  obliged 
to  take  cognizance  of  foreign  private  law,  and  did  so  only  out  of 
courtesy.  Enghsh  and  Scotch  jurists  derived  their  education 
largely  from  the  Netherlands  in  the  seventeenth  century,  and 
it  was  they  who  established  this  doctrine  in  England.  As  the 
English  colonists  took  the  English  common  law  with  them  to 
America  (Comp.  i  Kent's  Commentaries  on  American  Law, 
p.  343),  the  whole  complex  of  views  upon  international  private 
law  went  over  to  this  country  as  a  kind  of  article  of  export.' 

There  is  no  doubt  that  the  principal  Enghsh  and  American 

'  1  refer  in  this  connection  to  my  handbook  (Zurich,  1902):  Das  iuternation- 
ale  Civil  und  H andelsrecht  an)  Grund  der  Theorie,  Gesetzgebung  and  Praxis. 
It  may  be  of  interest  to  the  legal  profession  in  general  to  know  that  Mr.  Arthur 
K.  KuHN,  a  member  of  the  New  York  bar,  now  engaged  in  the  study  of  inter- 
national law  at  the  University  of  Zurich,  has  translated  this  work  into  the  Eng- 
lish language,  with  additions  as  to  the  American  and  English  theory  and  prac- 
tice, under  the  title.  International  Civil  and  Commercial  Law  as  Founded  upon 
Theory,  Legislation  and  Practice,  and  that  the  work  will  shortly  be  [)ublished. 
It  has  also  been  translated  into  Jaj)anese. 

^  That  passage  in  Kent  is  extraordinarily  fine  wherein  he  states  the  follow- 
ing as  to  the  English  common  law:  "In  its  improved  condition  in  this  country 
under  the  benign  influence  of  an  expanded  commerce,  of  enlightened  justice,  of 
republican  principles,  and  of  sound  philosophy,  the  common  law  has  become  a 
code  of  matured  ethics  to   promote  and  secure  the  freedom  and  happiness  of 

social  life It  is  the  common  jurisprudence  of  the  United  States,  and  was 

brought  with  them  as  colonists  from  England  and  established  here,  so  far  as 
it  was  adapted  to  our  institutions  and  circumstances.  It  was  claimed  by  the 
Congress  of  the  United  Colonies  in  1774  as  a  branch  of  those  'indubitable 
rights  and  liberties  to  which  the  respective  colonies  are  entitled.'  "  Kent  fol- 
lows this  up  with  a  poetic  effusion  upon  the  value  of  the  common  law. 


PAPER    OF   PROFESSOR   MEILI  137 

authors  consider  the  so-called  comitas  gentium  as  the  basis  of 
private  international  law.  Kent  and  Story,  Phillimore  (Vol. 
IV.  is  entitled  Private  International  Law  or  Comity)  and  Twiss 
{Law  0}  Nations,  1,  p.  160)  have  expressed  this  view.  It  is  true 
Wharton  (Conflict  0}  Laws,  §1)  opposes  this,  and  Lorimer 
used  even  more  energetic  terms  when  he  said  (Institutes  oj  the 
Law  of  Nations,  i,  p.  357)  "Private  international  relations  are 
relations  of  right  on  the  one  hand  and  duty  on  the  other";  and 
then  afterwards  he  calls  the  comitas  gentium  "an  old  woman's 
fable."  However,  notwithstanding  this  energetic  opposition, 
it  must  be  said  that  the  Anglo-American  theory  of  international 
private  law  suffers  from  being  placed  upon  so  unsound  a  basis. 
In  view  of  the  fact  that  most  of  the  nations  of  Europe  under 
the  leadership  of  the  Netherlands  have  entered  into  confer- 
ences for  the  purpose  of  settling  questions  of  private  inter- 
national intercourse,  in  the  most  expedient  way,  by  the  estab- 
lishment of  binding  rules,  we  may  say  that  they  have  definitely 
broken  away  from  that  historical  epoch  wherein  the  question 
was  merely  deemed  one  of  favor  or  courtesy.  Two  propositions 
are  thus  embraced : 

1.  Foreign  private  law  is,  upon  principle,  of  the  same  value 
as  the  internal. 

2.  There  is  a  legal  duty  to  apply  foreign  private  law  to  an 
issue  when  it  is  subjected  thereto. 

As  the  European  international  conferences  have  now  been 
repeatedly  held,  and  as  rules  have  been  accepted  for  solving 
conflicts  of  law,  theories  many  centuries  old  may  be  deemed  as 
surrendered  and  definitely  done  away  with. 

As  it  is  my  purpose  to  discuss  the  principal  questions  of 
the  four  Hague  Conferences,  it  will  be  necessary  to  sketch  the 
results  in  outhne,  avoiding  all  detail.  Some  slight  indication 
of  the  manner  of  procedure,  however,  will  be  in  point.  From 
the  First  Conference,  it  was  self-understood  that  the  French 
language  should  be  the  medium  of  expression,  and  so  it  remained. 
Then,  too,  from  the  very  beginning,  committees  were  appointed 
to  discuss  particular  topics  more  freely  and  in  detail,  and  thus 


138     CONGRESS   OF  LAWYERS  AND   JURISTS 

to  arrive  at  concrete  solutions.  From  1900  onward  a  splendid 
practice  arose  of  having  the  various  governments  assume  atti- 
tudes with  regard  to  concrete  questions.  The  Government  of 
the  Netherlands  then  collected  these  comments  and  proposi- 
tions and  sent  them  in  due  time  to  the  various  governments 
with  those  of  the  special  committee  of  the  Netherlands.  The 
president  of  the  committee  for  the  time  being  also  prepared 
the  detailed  report  and  proposal  to  lay  before  the  Conference  as  a 
whole;  sometimes  a  special  appointment  was  made  for  a  report. 
The  preparation  of  the  report  is  a  very  laborious  task,  and  we 
were  often  obliged  to  appeal  to  the  untiring  courtesy  of  the 
French  delegates.'  The  report  was  first  examined  and  discussed 
by  the  members  of  the  committee.  The  topic  then  came  for 
discussion  before  the  entire  Conference,  where,  of  course,  any 
delegate  could  propose  amendments.  As  a  rule  there  were 
two  readings.  The  second  was  usually  intended  only  for  cor- 
rection of  the  text  and  for  further  discussing  and  voting  upon 
the  questions.  Still,  there  were  exceptions,  as,  for  instance, 
where  at  the  last  moment  the  president  of  the  Conference  dis- 
covered some  new  combination  for  the  solution  of  existing 
differences.  But  this  did  not  often  occur.  State-Councilor 
AssER,  who  was  re-elected  president  at  each  of  the  four  Con- 
ferences, proved  himself  so  much  the  soul  of  the  whole  enter- 
prise as  always  to  discover  a  solution  at  the  proper  time. 

The  four  international  Conferences  already  held  have  under- 
taken the  most  varied  topics. 

The  work  of  the  international  Conferences  should  properly 
be  divided  into  three  groups,  for  they  represent  subjects  which, 
on  jjrinciple,  should  be  kept  separate: 

(A)  International  Civil  Procedure. 

(B)  International  Private  Law. 

(C)  International  Bankruptcy  Law. 

'It  is  a  privilege  for  me  to  refer  here,  with  particular  recognition,  to  the  ser- 
vices of  the  celebrated  French  internationalist,  L.  Renault,  under  whose  presi- 
dence  I  labored  at  each  Conference. 


PAPER   OF   PROFESSOR    MEILI  139 


Concerning  International  Civil  Procedure 

In  1899  a  treaty  was  ratified  between  the  fourteen  nations 
which  were  represented  at  the  Second  Conference.  It  bears 
the  following  title :  Convention  pour  etahlir  des  regies  communes 
concernant  plusieurs  matures  de  droit  international  privc  se 
rapportant  a  la  procedure  civile.  The  exchange  of  ratifications 
occurred  April  27,  1899.  The  duration  of  the  treaty  was  for 
five  years,  i.  e.,  until  April  27,  1904;  but  as  no  state  gave  notice 
of  termination  before  that  time,  the  treaty  is  extended  until 
April  27,  1909,  in  accordance  with  an  express  provision.'  In 
view  of  the  fact  that  practice  has  shown  a  number  of  defects  in 
this  treaty  its  revision  was  part  of  the  order  of  the  day  for 
the  Conference  of  1904,  and  in  fact  a  new  treaty  has  been 
elaborated  to  take  the  place  of  the  old ;  naturally  the  contract- 
ing states  are  at  liberty  to  conclude  a  new  treaty  at  any  time. 
The  present  Hague  Convention  deals  with  the  following 
topics: 

a)  Communication  of  acts,  judicial  and  extra-judicial 

(notices,  transfers,  citations). 

b)  Rogatory  letters  or  commissions. 

c)  Alien  security. 

d)  Procedure  in  the  case  of  poor  persons. 

e)  Imprisonment  for  debt  {contrainte  par  corps). 

The  provisions  upon  all  these  subjects  are  those  which  are 
of  importance  to  international  intercourse — the  internal  or  local 
law  remained  for  the  most  part  untouched.  Thus,  for  instance, 
imprisonment  for  debt  was  not  directly  done  away  with,  but  it 

'  The  treaty  is  printed  in  French  and  German  in  the  appendix  to  my  pam- 
phlet Das  inkrnationale  Privatrecht  und  die  Staatenkonferenzen  im  Haag 
(Zurich,  1900).  See  also  C.  D.  Asser  in  Report  of  the  Twentieth  Conference 
of  the  International  Law  Association  (London,  1901),  p.  299.  The  text  is 
printed  in  English  at  p.  305.  See  also  T.  M.  C.  Asser:  La  convention  de  la 
Haye  du  14  Novembre,  i8g6,  relative  a  la  procedure  civile  (1901). 


I40     CONGRESS   OF  LAWYERS  AND   JURISTS 

was  stated  to  be  applicable  as  against  aliens  only  in  case  it  was 
permissible  against  native  subjects.' 

Throughout  the  territory  in  which  the  treaty  is  in  effect,  the 
communication  of  legal  acts  (in  the  broadest  sense)  has  been 
elevated  to  the  position  of  a  formal  obligation  in  international 
law,  and  a  refusal  is  justifiable  only  in  the  event  of  most  par- 
ticular reasons." 

So  far  as  citations  are  concerned,  it  is  obviously  a  demand 
of  justice  that  the  particular  person  shall  actually  receive  them 
when  in  a  foreign  country,  for  otherwise  the  action  will  have 
been  based  upon  a  doubtful  fiction.  A  certain  guaranty  for  the 
fulfilment  of  this  requirement  has  been  obtained  in  so  far  as 
the  forwarding  of  documents  is  now  a  treaty  obhgation.  On 
the  other  hand,  it  cannot  be  denied  that  the  system  existing  in 
some  European  countries,  of  a  remise  ate  parquet  (France, 
Italy ),'^  or  the  delivery  of  the  citation  to  the  clerk  of  the  court 
(Austria),  has  not  yet  been  done  away  with.  The  question  has 
arisen  in  practice  as  to  whether  the  communication  of  legal 
documents,  provided  for  in  Article  i  of  the  treaty,  is  completed 
upon  delivery  to  the  local  officials,  or  not  until  delivered  to  the 
addressee.  But  the  Conference  did  not  wish  to  encroach  upon 
the  internal  law  of  procedure,  and  to  this  effect  the  treaty  had 
been  interpreted  in  the  reports  elaborated  in  the  several  states, 
in  connection  with  the  granting  of  the  parhamentary  sanction. 
At  the  Fourth  Conference  the  matter  was  made  entirely  clear. 
Belgium  proposed  bluntly  to  insert  the  following  clause  in  the 
treaty : 

"La  signification  ne  produit  son  effet  qu'a  partir  de  I'accomplisse- 
ment  de  ces  formalites"  (i.  e.,  after  actual  delivery  to  the  party  des- 
ignated). 

'  Comp.  Kleinfeller,  Ueber  den  Einfiiiss  der  Konkurscroffnung  auf  die  Per- 
so7ialha}t  mil  Riicksicht  au}  Art.  ij  des  Haager  Abkommens,  in  Z.  j/ir  inter- 
nalionales  Privat-und  ojfenllichcs  Recht,  XIII,  pp.  i-ii.  The  statement  made 
in  my  book:  Das  intern  alio  nale  Zivilprozessrecht  auf  grund  der  Theorie,  Gesetz- 
gebung  und  Praxis,  Zurich,  1904,  p.  30,  is  subject  to  correction. 

-  This  has  also  been  properly  stated  by  C.  D.  Asser,  cited  supra  p.  301. 
Comp.  also  my  book,  Das  inlernationale  Zivilprozessrecht. 

'  Comp.  my  Internationales  Zivilprozessrecht,  p.  182,  et  seq. 


PAPER    OF    PROFESSOR    MEILI  141 

But  the  Fourth  Conference  refused  to  go  so  far,  and  merely 
expressed  the  wish  that  the  system  of  remise  au  parquet  (and  the 
Hke)  should  be  abolished  by  means  of  revision  of  the  internal 
law  or  by  treaty.  It  is  precisely  here  that  the  Conference  showed 
clearly  how  carefully  it  avoided  encroaching  upon  the  positive 
legislation  of  the  various  states.  I  also  voted  to  this  effect, 
although  I  regret  exceedingly  the  existence  of  such  systems. 

Particularly  important  for  the  development  of  the  law  is  the 
provision  whereby  the  states  obligate  themselves  lor  the  execu- 
tion 0}  letters  rogatory.  Within  the  territory  affected  by  The 
Hague  treaty,  a  peculiarly  important  obligation  of  international 
law  has  thus  been  estabhshed,  and  I  hasten  to  add  that  the  revis- 
ory project  of  1904  has  even  strengthened  it  (see  e.  g.  Art.  11). 
The  proposition  was  also  established,  that  if  the  court  to  which 
the  commission  is  addressed  is,  or  is  no  longer  competent,  it 
shall  be  forwarded  to  the  court  actually  competent.  And  as  to 
the  revision  of  1904  the  following  important  addition  was  made 
(Art.  11): 

"L'autorite  requerante  sera,  si  elle  le  demande,  informee  de  la 
date  et  du  lieu  oii  il  sera  precede  a  la  mesure  soUicitee  afin  que  la 
partie  interess^e  soit  en  etat  d'y  assister." 

The  present  convention  placed  the  right  to  accord  or  refuse 
assistance  by  way  of  the  execution  of  letters  rogatory  (and  the 
delivery  of  documents)  within  positive  boundaries,  in  that 
Art.  2  (see  also  Art.  7)  provides  that  a  refusal  is  justifiable, 
only  if  the  state  within  which  the  assistance  is  to  be  accorded 
is  of  the  opinion  that  its  sovereignty  or  safety  is  endangered. 
It  was  intended  in  this  way  that  international  assistance  should 
be  extended.  But  it  cannot  be  demanded,  for  example,  where 
the  inquiry  concerns  matters  which  the  nation  whose  aid  is 
required  deems  a  state  secret  or  which  refer  to  secret  govern- 
mental information.^ 

Of  further  importance  is  the  fact  that  the  treaty  provides 
that  attention  may  be  given  to  some  particular  forms  of  law  of 
the  state  from  which  the  commission  emanates  (Art.  10).     Some 

*  Comp.  as  to  the  details  of  my  book,  Internationales  Zivilprozessrecht,  p.  55. 


142      CONGRESS   OF   LAWYERS  AND   JURISTS 

systems  of  law  forbid  an  oath  to  be  taken  by  the  parties  to  the 
action,  witnesses  or  experts,  or  which  do  not  permit  the  presence 
of  the  parties  and  their  representatives  at  the  taking  of  testi- 
mony. In  such  cases  a  concession  may  be  made  ex  comitate 
gentium  if  the  state  from  which  the  commission  emanates  makes 
the  request  and  the  state  executing  it  does  not  forbid  the  pro- 
cedure desired. 

The  original  treaty  did  not  regulate  the  question  oj  the 
costs  of  commissions,  but  the  revisory  project  of  1904  has  done 
so;  it  estabhshes  the  proposition  that  commissions  are  to  be 
executed  without  costs,  except  the  expenses  of  witnesses  and 
experts  and  those  costs  which  arise  from  the  intervention  of  an 
official  (huissier)  for  the  purpose  of  compulsory  citation  of  wit- 
nesses (Art.  16).  If  this  principle  be  accepted,  the  proposition 
will  have  been  recognized  that  the  according  of  assistance  in 
legal  matters,  in  the  broadest  sense  of  the  term,  is  a  universal 
duty  on  the  part  of  the  nations. 

The  Hague  treaty  abolished  also  alien  security,  or  that 
which  a  plaintiff  was  obliged  to  give  by  reason  of  being  a  foreign 
subject,  or  of  having  no  residence  in  the  inland.  Herein  lies, 
in  my  opinion,  very  considerable  progress,  as  the  giving  of 
security  unreasonably  impedes  the  prosecution  of  subjective 
rights.  On  the  other  hand,  the  international  execution  of 
judgments  has  been  secured  so  far  as  concerns  processual 
costs.  As  is  well  known,  the  question  of  the  execution  of 
foreign  judgments  is  the  most  difficult  to  be  found  anywhere. 
Both  the  Institut  de  droit  international  and  the  International 
Law  Association  have  labored  strenuously  in  this  connection' 
and  their  work  is  to  be  deservedly  appreciated.  At  the  meet- 
ing of  the  International  Law  Association  at  Rouen  in  1900  a 
project  was  advanced  by  Alderson  Foote  which  is  printed  in 
English  in  the  Report  0}  the  Nineteenth  Conference  (London, 
1900)  p.  196  et  seq.,  and  in  French  at  p.  204.  To  this  project 
certain  amendments  were  proposed  for  the  meeting  in  Glasgow 

'  I  refer  to  my  publication,  Geschichie  und  System  des  internationalen 
Privatrechts  im  Grundriss  (Leipzig,  1892),  pp.  170,  171;  and  also  to  my  pam- 
phlet, Reflexionen  iiher  die  Exekution  auswdrtiger  Zlvilurteile  (Zurich,  1902). 


PAPER    OF    PROFESSOR    MEILI 


143 


{Report  0}  the  Twentieth  Conjerence,  pp.  274  et  seq.).  A  num- 
ber of  critical  remarks  are  also  to  be  found  in  the  later  report, 
pp.  282-298. 

The  question  of  the  execution  of  judgments  was  again  dis- 
cussed at  the  meeting  of  the  International  Law  Association 
in  Glasgow  in  1901,  but  no  conclusion  was  reached  {Report  of 
the  Twentieth  Conference,  London,  1901,  pp.  309-325). 

The  International  Law  Association  has  lately  concluded 
to  limit  an  agreement  as  to  the  recognition  of  foreign  judgments, 
to  judgments  for  a  sum  of  money.  Art.  i  of  the  draft  reads  as 
follows : 

{Report  of  the  Nineteenth  Conference  London,  1901,  pp. 
196,  197.) 

"This  convention  shall  relate  to  and  operate  in  respect  to  the 
following  judgments  only,  viz,  judgments  for  the  payment  of  an 
ascertained  sum  of  money,  whether  by  way  of  debt,  damages  or 
costs,  by  one  person  to  another " 

To  Art.  I  of  the  project  of  A.  Foote  there  is  the  following 
note: 

{Report  of  the  Nineteenth  Conference  1900,  London,  1901, 
p.  197.) 

"It  is  suggested  that  there  is  no  practical  chance  of  obtaining 
legislation,  or  even  agreement,  at  any  rate  for  the  present,  except  by 
conlining  the  attempt  to  the  simple  case  of  a  judgment  in  personam 
for  an  ascertained  sum  of  money." 

//  is  fust  these  experiences  which  the  two  principal  societies 
upon  international  law  have  made,  that  give  manifest  proof 
that  the  international  conferences  have  acted  wisely  in  being 
satisfied  for  the  present  with  the  proposition  that  judgments  for 
costs  shall  he  executed  by  the  states.  Progress  in  the  world 
almost  always  starts  in  a  small  way,  and  if  the  matter  proves 
satisfactory  as  to  that  much,  greater  results  can  so  much  more 
surely  be  expected  in  the  same  direction.  I  may  add  that  the 
Fourth  Conference,  of  1904,  engaged  itself  more  in  detail  with 
this  fragment  for  the  execution  of  judgments,  and  especially 
that  the  gratuitousness  of  the  execution  was  agreed  upon  (Art. 


144     CONGRESS   OF   LAWYERS   AND   JURISTS 

1 8).  I  would  like,  furthermore,  to  emphasize  that  the  whole 
subject  was  jormerly  attacked  in  the  wrong  way.  Its  regulation 
can  he  arrived  at  correctly  only  in  connection  with  an  agreement 
as  to  the  fora.' 

Finally,  The  Hague  Convention  contains  a  provision  in 
favor  of  poor  persons.  Foreign  subjects  shall  be  admitted  to 
the  privileges  of  poor  persons  equally  with  natives.  In  my 
opinion,  this  represents  progress  from  the  point  of  view  of 
international  philanthropy.  There  are  those  who  include 
hereunder  the  exemption  from  giving  security  and  the  right 
to  gratuitous  representation.  In  this  connection,  reference 
may  be  made  to  a  report  of  Coldstream  of  Edinburg:  "The 
expediency  of  uniformity  in  the  procedure  of  the  costs  of  civihzed 
countries  with  regard  to  pauper  litigants,"  and  to  the  Twenty- 
first  Report  of  the  International  Law  Association,  p.  39. 

B 

Concerning  International  Private  Law 

The  Hague  Conference  elaborated  draft  treaties  dealing 
with  conflicts  in  various  departments  of  the  private  law,  viz : 

a)   Upon  certain  topics  of  family  law.^ 

«]  Entrance  into  marriage. 

z']  Divorce. 

r]  Guardianship  of  minors. 

Each  one  of  these  topics  is  treated  of  in  a  convention.  The 
three  treaties  were  accepted  by  the  parliaments  of  the  following 
seven  nations,  ratifications  being  exchanged  on  the  first  day  of 
June,   1904,  at  The  Hague,  while  we  were  assembled  at  the 

'  I  developed  this  idea  further  in  my  pamphlet,  Reflexionen  fiber  die  Exe- 
hulion  ausuu'irtiger  Zivilurteile.  Naturally,  I  will  again  recur  to  it  in  the  last 
part  of  my  book,  Das  internationale  Zivilprozessrecht. 

^  Upon  the  two  treaties  regarding  entrance  into  marriage  and  divorce,  cer- 
tain comments  are  to  be  found  in  the  work  of  Leske  and  Lowenfeld:  Die 
Rechtsverfolgung  im  internationalen  Verkehr.  Fourth  volume:  Das  Eherecht 
der  europdischen  Staaten  und  Hirer  Kolonien,  1904,  pp.  986-996. 


PAPER    OF    PROFESSOR    MEILI  145 

Fourth  Conference:'  France,  Germany,  Belgium,  Netherlands, 
Luxemburg,  Roumania,  and  Sweden. 

The  other  nations  have  not  yet  expressed  a  determination 
to  join,  though  Austro-Hungary,  Italy,  and  probably  also 
Spain  and  Portugal  will  do  so  before  the  end  of  1904.  Switzer- 
land has,  for  various  reasons,  not  been  in  a  hurry  to  lay  the 
matter  before  the  federal  parhament.  In  the  -first  place,  the 
concessions  demanded  for  the  benefit  of  the  domiciliary  law  in 
regard  to  guardianship  were  not  made,  and  furthermore,  a 
difficult  situation  is  presented  for  the  reason  that  the  work  of 
codifying  a  civil  code  is  just  now  occupying  foremost  attention. 

b)   Upon  the  effects  of  marriage  upon  the  personal  rights  of 
spouses  and  their  rights  of  property. 

In  its  projet  de  programme  of  December,  1897,  the  Govern- 
ment of  the  Netherlands  proposed  a  draft  entitled,  ^^Disposi- 
tions concernant  les  effets  du  mariage  sur  les  biens  des  t'poux.^^  '^ 
It  was  proposed  to  divide  the  subject-matter  for  the  Third  Con- 
ference as  follows: 

"A.  Les  effets  du  mariage  sur  I'etat  et  la  capacite  de  la  femme 
{Documents  relatifs  a  la  quatrieme  Conference,  1904,  p.  52). 

"B.  Les  effets  du  mariage  sur  les  biens  des  epoux  {Documents, 
p.  64). 

"C.  Les  effets  du  divorce  et  de  la  separation  de  corps  {Documents, 
p.  80)." 

The  Fourth  Conference  then  worked  out  a  uniform  project 
entitled: 

"Projet  d'une  convention  concernant  les  conflits  de  lois  relatifs 
aux  effets  du  mariage  sur  les  droits  et  les  devoirs  des  epoux  dans 
leurs  rapports  personnels  et  sur  les  biens  des  epoux." 

'  Simeon  E.  Baldwin  discusses  these  treaties  under  the  title,  The  New 
Code  oj  International  Family  Law  (Yale  Law  Journal,  June,  1903,  p.  487).  This 
author  is  in  error,  however,  in  stating  that  the  treaties  went  into  effect,  as  to  most 
of  the  participating  nations,  on  August  12,  1902.  He  was  led  to  believe  that 
the  signing  by  the  diplomatic  representatives  on  June  12,  1902,  already  in- 
volved the  exchange  of  ratifications. 

-  The  project  is  printed  in  my  pamphlet,  Das  internationak  Privatrecht 
und  die  Staatenkonferenzen  im  Haag,  pp.  60,  61. 


146      CONGRESS   OF  LAWYERS   AND   JURISTS 

Meanwhile,  I  may  mention  here,  that  this  projected  treaty 
is  not  yet  ripe  for  acceptance;  there  was  such  an  extraordinary 
number  of  difficulties  discovered  when  it  was  tested  in  detail, 
that  a  more  far-reaching  study  of  it  is  required.  Under  these 
circumstances,  it  would  not  be  to  the  purpose  to  discuss  it 
further  here.^ 

c)  Upon  the  law  0}  succession.  The  First  Conference  was 
already  well  aware  that  the  proposal  could  not  be  viewed  as  a 
definite  one,  for  even  the  introduction  (Actes  de  la  Conference, 
I  partie)  contained  a  reservation  {sous  la  reserve  expresse  des 
derogations  que  chaque  etat  pourra  juger  necessaire,  au  point  de 
vue  du  droit  public  ou  de  Vinteret  social  .  .  .  .).  The  Second 
Conference  again  occupied  itself  with  the  subject  {Actes  de  la 
deuxieme  Conference,  p.  125),  as  did  also  the  Third  Conference 
{Actes  de  la  troisieme  Conference,  p.  107),  which  elaborated 
a  draft  treaty  entitled: 

"Projet  d'une  Convention  pour  regler  les  conflits  de  lois  relative- 
ment  aux  successions,  aux  testaments,  et  aux  donations  a  cause  de 
mort." 

But  this  treaty  was  not  received  with  enthusiasm  by  the 
participating  nations,  and  the  Government  of  the  Netherlands 
preferred  not  to  advise  a  preliminary  signing  by  the  diplomats. 
It  thus  becomes  clear  how  the  Fourth  Conference  again  took  up 
the  subject  upon  the  basis  of  a  whole  series  of  criticisms  made 
by  the  several  nations  {Documents  relatifs  a  la  quatricme  Con- 
ference, 1904,  p.  28).  At  the  Fourth  Conference,  a  tendency  was 
shown  to  deal  only  with  certain  isolated  questions  of  the  law 
of  succession  and  not  with  all  the  questions  connected  there- 
with. It  was,  moreover,  expressly  declared  that  the  convention 
was  not  intended  to  regulate: 

"■)  gifts, 

/')  contracts  for  succession, 

r)  the  position  of  juristic  persons  in  matters  of  succes- 
sion. 

"■  I  refer  to  my  pamphlet,  Das  internationale  Privatrecht  und  die  Staaten- 
konjerenzen  im  Haag,  pp.  60-66. 


PAPER   OF   PROFESSOR    MEILI  147 

Thus  it  comes  that  the  draft  convention  now  bears  the  title: 

"Projet  d'une  Convention  sur  le  conflit  de  lois  en  matiere  de  suc- 
cessions et  de  testaments." 

The  Conference  of  1904  expressed  the  following  desire: 

"Que  le  Gouvernment  des  Pays-Bas  veuille  bien,  aussitot  que 
possible  apres  la  signature  de  la  Convention  sur  les  successions  et  les 
testaments,  convoquer  une  nouvelle  Conference,  qui  aurait  ])our 
mandat  de  preparer  le  protocole  additionel  vise  a  Part.  6,  ^2  de  la 
dite  Convention  aussi  que  la  Convention  relative  a  la  competence  et 
a  la  procedure  en  matiere  de  successions  et  de  testaments  vis^e  a 
Tart,  8." 

Art.  6,  Sec.  2,  here  cited,  refers  to  the  specification  of  impera- 
tive or  prohibitive  rules  of  law,  the  applications  of  which  are 
demanded  by  the  internal  or  local  law,  even  though  a  foreign 
system  of  law,  in  successory  matters,  be  applicable  in  other 
respects. 

And  Art.  8  provides: 

"Aussitot  que  possible  apres  la  signature  de  la  presente  Conven- 
tion, les  Etats  contractants  etabliront  d'un  commun  accord  les 
regies  concernant  la  competence  et  la  procedure  en  matiere  de  suc- 
cessions et  de  testaments. 

"La  convention  contenant  ces  regies  sera  ratifiee  en  meme  temps 
que  la  presente  Convention." 

The  conventions  bearing  upon  private  law  prepared  at  The 
Hague  refer  to  family  law  and  succession;  it  would  seem 
appropriate  to  discuss  briefly  their  principal  features. 

I.  The  Convention  upon  Marriage 

This  convention  refers  only  to  the  conditions  necessary  for 
the  validity  of  the  marriage,  and  in  this  connection  sets  up  the 
following  rules — I  will  here  again  restrict  myself  to  the  main 
points: 

"Art.  I.  The  right  of  contracting  marriage  is  determined  by  the 
national  law  of  each  of  the  parties  intending  to  be  married  .  .  .  .  " 

The  standard  rule  for  the  solution  of  conflicts  of  law  in 
Continental  Europe  is  the  national  law,  whenever  the  question 


148      CONGRESS   OF   LAWYERS  AND   JURISTS 

is  one  of  the  so-called  personal  statute,  and  this  arises  when 
capacity  inherent  in  personal  rights  is  under  discussion.  This 
embraces,  without  doubt,  the  capacity  to  enter  into  marriage. 
The  laws  of  the  nations  of  Continental  Europe  hold  that  the 
national  state  alone  is  in  proper  position  to  determine  the  con- 
ditions necessary  for  the  conclusion  of  the  marriage  tie.  Of 
special  importance  in  this  connection  is  the  age  necessary, 
which  varies  with  climatic  conditions.  There  are  then  an 
array  of  further  points  connected  with  social  and  moral  order, 
as,  for  instance,  impediments  connected  with  relationship.  // 
is  intended  in  Europe  that  authoritative  control  by  the  lex 
patriae  shall  be  a  guaranty  that  the  spouses  shall  not  conjure 
with  the  local  laws  by  placing  themselves,  for  a  shorter  or 
longer  time,  under  a  different  system  of  law.  Art.  i  is  thus 
explained. 

Upon  this  momentous  question,  the  Enghsh-American  con- 
ception differs  from  that  of  Continental  Europe;  for  there  it 
depends  upon  the  law  of  the  domicile,  yea,  even  that  of  the 
mere  place  of  sojourn.  And  I  must  add  that  England  became 
the  matrimonial  Eldorado  for  persons  desirous  of  marrying  and 
who  were  unable  to  reach  the  goal  in  Continental  Europe,  much 
in  the  same  way  as  was  Scotland  for  English  men  and  women, 
when  Gretna  Green  marriages  played  a  r61e.  In  fact,  so  long  as 
conditions  for  the  validity  of  a  marriage  are  less  irksome  in 
other  more  or  less  accessible  countries,  it  is  really  only  a  question 
of  the  pocket-book,  whether  the  marriage  cannot  be  entered  into 
in  opposition  to  the  national  law.  The  Hague  Convention  in- 
tends that  an  end  shall  be  put  to  this  situation  within  the  territory 
it  affects. 

It  is  true,  however,  that  the  principle  has  been  moderated 
so  as  particularly  to  meet  the  demands  of  Switzerland.  The 
following  clause  has  been  added : 

".  .  .  .  unless  such  national  law  refers  expressly  to  some  other 
law." 

Art.  25  of  the  Swiss  federal  statute  upon  civil  status  and 
marriages  provides: 


PAPER    OF    PROFESSOR    MEILI  149 

"Sera  reconnu  comme  valable  dans  toute  la  Confedbration  le 
manage  conclu  dans  les  cantons  ou  a  Vetranger,  conformement  a  la 
legislation  qui  y  est  en  vigueury 

And  the  clause  cited  represents  a  concession  made  to  Switzer- 
land. I  pointed  out  at  the  time  before  the  committee  on  mar- 
riage law  that  there  was  no  sufficient  ground  to  force  Switzerland 
to  refer  to  the  national  law,  upon  a  topic  in  which  her  laws  were 
so  international  in  spirit  as  to  recognize  all  marriages  concluded 
abroad  according  to  the  law  there  in  force. 

It  was  further  said,  that  the  legislation  of  the  domicile 
should  also  be  given  a  certain  influence,  because  it  cannot  per- 
mit the  conclusion  of  a  marriage  under  all  circumstances  simply 
because  the  national  law  permits  it.  The  international  con- 
ferences found  that  in  certain  particularly  salient  cases,  the 
domicihary  state  need  on  no  account  permit  the  conclusion  of 
a  marriage.  Three  cases  are  cited  in  Art.  2,  which  reads  as 
follows : 

"Art.  2.  The  law  Loci  Celebrationis  can  refuse  to  marry  alien?  if 
their  marriage  would  be  contrary  to  its  own  laws  regarding: 

"ist.  Prohibited  degrees  of  relationship  for  which  there  is  an 
absolute  prohibition. 

"2d.  Absolute  prohibition  to  marry  brought  against  parties 
guilty  of  adultery,  for  which  reason  the  marriage  of  one  of  them 
has  been  dissolved. 

"3d.  Prohibition  to  intermarry  brought  against  persons  con- 
demned for  having  attempted  to  murder  the  husband  or  wife  of 
one  of  the  parties." 

It  is  then  further  provided : 

"A  marriage  performed  contrary  to  one  of  the  above-mentioned 
prescriptions  shall  not  be  void,  provided  it  would  be  valid  according 
to  the  law  referred  to  in  Art.  i." 

"Art.  3.  The  Lex  Loci  Celebrationis  can  permit  marriage  of 
aliens  notwithstanding  the  prohibitions  of  the  law  mentioned  in 
Art.  I,  when  these  are  exclusively  founded  on  reasons  of  religious 
character;  but  the  other  countries  have  the  right  not  to  consider  as 
valid  a  marriage  performed  under  such  circumstances." 

The  conference  has  here  tempered  the  influence  of  the 
national  law  in  the  interest  of  the  freedom  of  the  marriage  tie. 


I50     CONGRESS   OF   LAWYERS   AND   JURISTS 

Where  the  national  law  forbids  a  marriage  for  religious  reasons, 
e.  g.,  between  Christians  and  Jews,  another  state  is  not  obliged 
to  forbid  the  conclusion  of  the  marriage.  This  would  be  in 
contravention  of  the  great  principle  of  freedom,  and  I  moved 
the  committee  at  the  time  to  respect  it,  and  succeeded  (Actes 
de  la  troisihne  Conference,  1900,  p.  174).  A  balance  upon 
this  proposition  lies  in  the  fact  that  other  nations  (besides 
that  of  the  lex  loci  celebrationis)  may  regard  such  a  marriage 
as  invalid. 

I  will  cite  still  another  provision,  viz : 

"Art.  5.  The  marriage  performed  in  accordance  with  the  law 
Loci  Celebrationis  will  be  as  regards  its  form  everywhere  considered 
a  valid  marriage. 

"It  is,  however,  understood  that  countries  whose  legislation 
requires  a  religious  marriage  ceremony  will  be  free  to  consider  as 
invalid  a  marriage  performed  by  their  subjects  abroad,  where  this 
religious  requirement  has  not  been  fulfilled. 

"The  requirements  of  the  national  law  re  publications  must  be 
fulfilled,  but  the  absence  of  these  publications  will  not  render  the 
marriage  voidable  in  other  countries,  excepting  in  those  countries 
whose  laws  have  been  disregarded. 

"An  authentic  copy  of  the  Marriage  Act  shall  be  sent  to  the 
authorities  of  the  countries  of  both  husband  and  wife." 

The  well-known  rule  of  locus  regit  actum  is  here  also  appli- 
cable. But  at  the  demand  of  Russia  we  agreed  to  a  modifi- 
cation of  the  rule,  as  this  nation  only  recognizes  marriages 
solemnized  by  its  church.  It  is  for  this  reason  that  orthodox 
Russians  marrying  in  Switzerland  are  always  notified  to  have 
their  marriage  solemnized  at  the  Russian  church  in  Geneva, 
after  the  civil  ceremony.  According  to  Art.  5,  Russia  is  entitled 
to  regard  marriages  performed  abroad  without  a  solemnization 
by  the  Russian  church  as  invalid  within  its  territory.  But 
this  concession  was  not  sufficient  for  Russia,  and  it  did  not  join 
the  convention;  it  advanced  the  pretention  that  marriages 
of  Russians  performed  abroad  according  to  the  form  of  civil 
ceremony  there  in  force,  should  be  regarded  as  invalid  every- 
where. This  unwarranted  mastery  by  the  lex  patriae  could 
not  be  acceded  to  by  us.     As  Russia  therefore  did  not  join  the 


PAPER    OF    PROFESSOR    MEILI  151 

convention,  the  concession  made  for  it  was  useless.  The  result 
shows  that,  under  circumstances,  too  much  courtesy  can  be 
shown  to  a  state! 

2.  The  Treaty  upon  Divorce 

The  regulation  of  divorce  in  international  matters  was 
equally  as  important  as  that  of  the  entrance  into  marriage. 
As  early  as  the  First  Conference,  I  moved  (Actes,  1893,  P-  7^) 
that  this  subject  be  placed  upon  the  tractandum  Hst.  I  will 
take  up  two  questions  here. 

I.  It  was  difficult  to  find  a  principle  to  serve  as  a  solution 
here,  in  view  of  the  fact  that  legislation  upon  divorce  differs 
greatly  throughout  the  world;  that  particularly  certain  Catholic 
countries  (Austria,  Italy,  Spain,  Portugal)  recognize  only  a 
separation  de  corps  of  their  Catholic  subjects  and  not  an  absolute 
divorce;  that  other  nations  only  permit  of  the  latter;  that  cer- 
tain systems  of  law  recognize  many  grounds  for  divorce,  while 
others  have  only  a  few  (England,  America).  Now,  the  Institut 
de  droit  international  proposed  the  following  provision  in  its 
"  Ri'glement  des  confliis  de  lois  en  mature  de  mariage  et  de 
divorce^^^ 

"Art.  17.  La  question  de  savoir  si  un  divorce  est  legalement 
admissible  ou  non  depend  de  la  loi  nationale  des  epoux. 

"Art.  18.  Si  le  divorce  est  admis  en  principepar  la  loi  nationale, 
les  causes  qui  le  motivent  doivent  etre  celles  de  la  loi  du  lieu  au 
raction  est  intentee. 

"Le  divorce  ainsi  prononce  par  le  tribunal  competent  sera  reconnu 
partout." 

From  the  very  beginning,  I  maintained  before  the  committee 
that  this  idea  developed  by  the  Institut  represented  a  splendid 
means  of  reconciling  the  two  main  principles  of  lex  patriae  and 
lex  domicilii.  I  pointed  out  that  the  primar}'  question  in  this 
branch  of  law  was  whether  the  nations  recognized  absolute 

'  It  is  printed  in  my  publication,  Geschichte  und  system  des  internalionalett 
Privatrechts  im  Grundriss,  pp.  73-75.  It  has  been  published  in  Spanish  by 
Torres  Campos,  Bases  de  una  Legislacion  sobre  Extralerritorialidad  Madrid, 
1896,  pp.  188-iqo. 


152      CONGRESS   OF  LAWYERS  AND   JURISTS 

divorce  at  all,  and  that  the  particular  grounds  were  a  secondary 
question.  The  first  question  should  therefore  be  determined 
by  the  lex  patriae.  If  denied  by  the  national  law,  the  domiciliary 
state  cannot  grant  the  divorce.  Thus  Italians,  Portuguese,  and 
Spaniards  could  not  be  divorced  at  their  place  of  domicile, 
even  though  the  law  of  that  place  recognized  absolute  divorce. 
If,  however,  the  national  state  permits  of  divorce,  the  grounds 
of  divorce  will  be  determined  by  the  law  of  the  domicile. 

But  this  sententia  media  advanced  by  me  did  not  gain  a 
victory  in  the  committee. 

In  1894  the  opinions  were  much  divided  but  in  1900  the 
idea  was  adopted  which  the  majority  had  already  in  1894.  It 
was  demanded  that  both  the  national  and  the  domiciliary  state 
must  recognize  the  institution  of  divorce,  and  that  also  the 
grounds  of  divorce  must  exist  according  to  both  systems  of  law. 
The  same  principle  was  adopted  as  to  the  separation  de  corps. 
The  authoritative  rules  read  as  follows  (and  I  note  that  a  small 
change  was  made  in  the  first  paragraph  of  Art.  2  through 
diplomatic  negotiations) : 

"Art.  I.  Les  epoux  ne  peuvent  former  une  demande  en  divorce 
que  si  leur  loi  nationale  et  la  loi  du  lieu  ou  la  demande  est  formee, 
admettent  le  divorce  I'un  et  I'autre. 

"II  en  est  de  meme  de  la  separation  de  corps. 

"Art.  2.  Le  divorce  ne  peut  etre  demande  que  si,  dans  le  cas  dent 
il  s'agit,  il  est  admis  a  la  fois  par  la  loi  nationale  des  epoux  et  par  la 
loi  du  lieu  ou  la  demande  est  formee,  encore  que  ce  soit  pour  des 
causes  diff^rentes. 

"II  en  est  de  meme  de  la  separation  de  corps." 

It  is  true  that  a  small  modification  of  the  principle  was 
made  because  in  Italy  divorces  have  been  granted  to  aliens 
where  their  national  law  so  permits,  although  Italy  itself  did 
not  recognize  the  institute  of  divorce  at  the  time.  The  case  is 
very  remarkable,  but  the  matter  is  settled.  It  is  a  kind  of  dis- 
counting of  the  divorce  project  in  Italy.' 

I  cannot  say  that  the  provisions  of  Arts,  i  and  2  have  my 

*  Comp.  my  publication,  Das  internationale  Privatrecht  und  die  Staatenkon- 
jerenzen  im  Haag,  pp.  51-53. 


PAPER    OF    PROFESSOR    MEILI  153 

full  sympathy;  for  in  the  particular  case,  it  may  be  very  difficult 
to  prove  a  concordance  between  two  systems  of  law,  and  I  do 
not  consider  it  proper  to  try  to  solve  the  difficulties  in  inter- 
national private  law  by  demanding  the  observance  0}  two  laws — 
that  means  simply  adding  to  the  difficulties  of  the  situation.  It 
is  true,  the  Third  Conference  tempered  the  principle  by  means 
of  a  rather  subtle  distinction.  An  accordance  of  the  two  laws 
as  to  the  ground  for  divorce  is  no  longer  required,  but  simply 
that  one  ground  shall  exist  by  the  lex  patriae  and  another  by 
the  lex  domicilii.  Each  ground  is  then  considered  internation- 
ally as  a  half-ground  (demie-cause)  and  two  half-grounds  make 
one  whole  ground.  It  is  that  which  has  been  expressed  still 
clearer  by  the  additional  clause  in  Art.  2,  encore  que  ce  soil 
pour  des  causes  differentes. 

2.  Special  difficulties  were  also  presented  in  the  variously 
regulated  competence  of  the  courts'  to  deal  with  actions  for 
divorce.  According  to  the  English  and  American  view,  the 
courts  of  the  domicile  have  the  right  to  determine  actions  for 
divorce.  From  the  Continental  European  point  of  view  it  is 
surprising  that  a  married  woman  may  acquire  an  independent 
domicile  so  as  to  obtain  a  divorce  at  a  remote  place  after  a 
short  sojourn.  The  exceptional  peculiarities  contained  in  the 
laws  of  South  Dakota  and  Oklahoma  Territory  have  made 
these  places  known  also  in  Europe  as  divorce  factories." 

Other  countries  accord  only  the  national  courts  jurisdiction 
to  grant  divorces  to  their  own  subjects,  while  others  recognize 
the  home  forum  only  as  an  exception. 

The  convention  did  not  found  or  create  any  forum,  but  made 
the  jurisdiction  of  the  court  dependent  upon  the  particular 
system  of  law.  Especially  important  are  Arts.  5  and  7.  I  will 
quote  Art.  5. 

Art.  5.  La  demande  en  divorce  oCi  en  separation  de  corps  peut 
etre  formee: 

I.  Devant  la  juridiction  competente  d'apres  la  loi  nationale  des 
epoux. 

*  The  details  are  given  in  my  Internationales  Zivilprozessrecht,  p.  223  et  seq. 
^See  Zeitschrift  }iir  internationales  Privat-und  Strafrecht,  IV,  pp.  404-407. 


154     CONGRESS   OF   LAWYERS   AND   JURISTS 

2.  Devant  la  juridiction  competente  du  lieu  ou  les  epoux  sont 
domicilies.  Si,  d'aprcs  leur  legislation  nationale,  les  epoux  n'ont 
pas  le  meme  domicile,  la  juridiction  competente  est  celle  du  domicile 
du  defendeur.  Dans  le  cas  d'abandon  et  dans  le  cas  d'un  change- 
ment  de  domicile  oper^  apres  que  la  cause  de  divorce  ou  de  separa- 
tion est  intervenue,  la  demande  pent  aussi  etre  formee  devant  la 
juridiction  competente  du  dernier  domicile  commun.  Toutefois,-  la 
juridiction  nationale  est  reservee  dans  la  mesure  oii  cette  juridiction 
est  seule  competente  pour  la  demande  en  divorce  ou  en  separation  de 
corps.  La  juridiction  etrangere  reste  competente  pour  un  manage 
qui  ne  peut  donner  lieu  a  une  demande  en  divorce  ou  en  separation 
de  corps  devant  la  juridiction  nationale  competente. 

3.  The  Treaty  upon  the  Guardianship  of  Minors  and 
THE  Draft  Convention  upon  Interdiction 

i)  Both  conventions  are  based  upon  the  same  principle: 
The  lex  patriae  was  here  again  the  victor.  Art.  i  of  the  Con- 
vention pour  regler  la  tutelle  des  mineurs  reads  as  follows: 

La  tutelle  d'un  mineur  est  reglee  par  sa  loi  nationale. 

And  Art.  i  of  the  Projet  d'une  Convention  concernant  Vin- 
terdiction  et  les  mesures  de  protections  analogues  provides: 

"L'interdiction  est  regie  par  la  loi  nationale  de  la  personne  a 
interdire,  sauf  les  derogations  a  cette  regie  contenues  dans  les  articles 
suivants." 

2)  If  the  national  state  does  not  institute  a  guardianship 
over  minors,  the  local  officials  may  do  so,  but  they  are  here  again 
restricted  to  the  grounds  recognized  by  the  national  state. 

In  regard  to  interdiction  (of  persons  physically  weak  or 
insane,  spendthrifts)  Art.  7  demands  that  in  the  event  of  officials 
of  the  place  of  sojourn  instituting  the  proceeding,  the  law  of 
that  place  and  of  the  national  state  must  permit  of  it.  Scien- 
tifically, the  cumulation  of  two  systems  of  law  is  objectionable — 
I  do  not  find  it  a  nice  solution. 

3)  Interdiction  produces  an  effect  everywhere  so  far  as  the 
capacity  of  the  interdicted  person  to  act  is  in  question.  Still, 
the  state  of  sojourn  may  provide  that  the  proceeding  instituted 
by  the  foreign  state  must  first  be  made  publicly  known  there 
before  such  effect  be  given  it.     The  limitation  upon  the  capacity 


PAPER    OF    PROFESSOR    MEILI  155 

to  act  will  then  date  only  from  that  time  forth  as  against  inno- 
cent third  parties. 

Art.  9  is  not  intended  to  mean  that  every  interdiction,  e.  g., 
also  that  based  upon  a  declaration  of  weakness  of  mind,  must 
be  recognized  everywhere.  According  to  the  Actes  de  la  IV 
Conference,  the  question  of  personal  freedom  remains  untouched 
— in  the  discussion  my  colleague  Roguin  clearly  explained  this 
question,  upon  which  we  lay  great  stress  in  Switzerland,  and  all 
the  delegates  were  entirely  agreed  in  relation  to  it. 

4.  The  Treaty  upon  Succession 

The  project  elaborated  in  1904  differs  materially  from  the 

earlier  projects.     It  may  be  said  to  rest  upon  four  principles: 

i)    It  enacts  the  unity  or  universality  of  the  estate;    so  that 

immovables  may  not  be  subjected  to  the  law  of  succession 

in  force  at  the  place  of  their  situation. 

In  Continental  Europe,  this  rule  is  regarded  as  ver\' 
important,  although  France,  Belgium,  Netherlands, 
Hungary,  and  Russia  support  a  different  system.  The 
scientific  writers  of  all  these  states,  however,  recognize 
that  the  condition  of  the  law  requires  reform.  The 
estate  should  not  be  cut  up  and  subjected  to  various 
systems  of  law. 
2)  The  estate  is  subjected  to  national  law  in  regard  to  the 
transfer  to  the  heirs,  the  rank  of  the  heirs,  their  quota, 
representation,  deduction  for  advances,  and  the  per- 
emptory quota. 

Norway,  Denmark,  and  Switzerland  have  up  till 
now  supported  the  principle  of  the  domicile.  As  rep- 
resentative of  Switzerland  I  attempted  a  compromise 
upon  the  basis  of  the  existing  laws.  Art.  22  of  the  federal 
statute  upon  the  legal  relationships  of  persons  domiciled 
and  sojourning,  provides: 

"Succession  is  governed  according  to  the  law  of  the  last 
domicile  of  the  deceased. 

"A  person   may,  however,   subject  the  succession  to  his 


156      CONGRESS   OF   LAWYERS   AND   JURISTS 

estate  to  the  law  of  his  home  country  by  testamentary  dis- 
position or  contract  for  succession." 

This  rule  applies  also  to  aliens  residing  in  Switzer- 
land  (Art.  32). 

1  stated  to  the  Conference  (Comp.,  e.  g.,  Actes  de  la 
Iroisicmc  Conference,  pp.  85-87)  that  there  should  also  be 
a  means  of  reconciling  the  domiciliary  with  the  national 
law  in  matters  of  succession.  I  therefore  proposed, 
among  other  things,  to  let  the  lex  patriae  govern,  but  to 
give  the  testator  the  right,  by  a  formal  act,  to  designate 
the  domiciliary  law.  I  thus  reversed  the  Swiss  provision. 
I  pointed  out  that  many  individuals  in  modern  times 
are  intimately  connected  with  the  domicilary  state,  and 
therefore  it  is  improper  to  restrict  them  to  the  law  of 
succession  of  the  national  state,  to  which  they  are  bound 
by  weak  ties  only. 

But  the  majority  continued  to  hold  the  view  that  the 
national  law  must  alone  be  authoritative. 

3)  Aliens  are  upon  equal  footing  with  natives,  in  matters  of 

succession. 

This  had  to  be  stated  particularly,  because  some 
countries  of  Europe  still  give  prior  rights  to  native  sub- 
jects over  pieces  of  property  situated  in  the  local  territory. 

This  rule  is  based  upon  the  French  law  of  1819.' 

4)  The  attempt  is  made  to  specify  the  so-called  imperative  or 

prohibitive  rules  by  means  of  declarations  to  be  given 
by  the  governments  of  the  participating  nations  within 
a  certain  time  (Art.  6).  This  matter  will  be  treated 
further  at  the  next  Conference. 

The  difficult  question  of  jurisdiction  in  disputes  over 
successions  will  be  also  discussed  at  the  next  Conference.'^ 

'  Comp.  my  work,  Internationales  Civil  und  Handelsrecht,  II,  p.  133: 
Kuhn's  translation,  Sec.  136,  II,  2. 

'  Germany  elaborated  a  draft  relating  to  the  jurisdiction  of  the  courts,  which 
is  printed  in  my  Internationales  Zivilprozessrecht,  p.  256  et  seq. 


PAPER    OF   PROFESSOR   MEILI  157 


Concerning  the  International  Law  of  Bankruptcy 

The  international  conferences  dealt  here  with  a  subject 
basically  differing  from  the  others.  Whereas,  international 
private  law  deals  with  the  question  whether  local  or  foreign 
private  law  is  applicable  to  a  particular  legal  relationship,  or 
whether  in  instituting  a  guardianship,  state  A  is  entitled  to 
place  an  individual  of  state  B  under  the  machinery  of  guardian- 
ship, international  bankruptcy  law  has  for  its  object  the  deter- 
mination as  to  whether  a  local  bankruptcy  of  its  own  force  affects 
assets  situated  abroad,  and  whether  a  foreign  bankruptcy 
affects  assets  in  the  local  state;  so  also  as  to  what  influence 
bankruptcy  has  upon  the  legal  position  of  the  bankrupt  inter- 
nationally and  as  to  how  the  various  proceedings  such  as  certifi- 
cates of  incomplete  payment,  compromise  agreements,  or  dis- 
charges are  to  be  interpreted  internationally  (a  question  which 
may  also  arise  intercolonially).  Thus  it  will  become  important 
to  determine  how  far  a  question  is  one  of  the  internal  law  of 
execution  (procedure)  and  how  far  one  of  foreign  substantive 
law,  and  to  what  extent  each  shall  be  apphed.  Of  course,  in 
international  bankruptcy  law,  the  entire  subject  of  international 
private  law  may  come  into  point/ 

The  subject  was  taken  up  at  the  Second  Conference  (1894) 
but  the  project  then  elaborated  designated  itself  only  as  a  prelim- 
inary work  {Actes  de  la  deuxieme  Conference,  1894,  pp.  59-62). 
At  the  Third  Conference,  the  subject  was  again  dealt  with, 
but   no   draft    resulted  (Actes  de  la  troisilme  Conference,  pp. 

147-151)- 

Since  some  considerable  time,  the  idea  thrown  out  by  Savigny 

(System  des  romischen  Rechts,  VIII,  p.  283)  has  been  widely 
followed,  particularly  by  Italian  jurists,  to  the  effect  that  a 
bankruptcy  is  possible  only  at  one  place;  they  put  the  concep- 
tion of  the  pluralite  or  territorialite  de  la  faillite  over  against  that 

'  This  remark  has  already  been  made  by  Lyon-Caen  and  Renault, 
Traite  de  droit  commercial,  VIII,  3d  edition,  No.  1225. 


158     CONGRESS   OF  LAWYERS  AND   JURISTS 

of  unite  J  This  principle  was  supported  also  by  an  inter- 
national congress  held  at  Turin,  which  formulated  detailed 
conclusions."' 

The  same  tendency  was  evidenced  also  by  the  Institut  de 
droit  international.'^  It  formulated  in  Paris,  in  1894,  Rt-gles 
gtWrales  sur  les  rapports  inter nationaux  en  matic're  de  jaillite 
{Annuairc  XIII,  1894-95,  pp.  279-281)  and  Roguin  worked 
out  proposals  for  the  meeting  at  Brussels  (Annuaire  XIX,  1902, 
p.  115;  discussion  at  pp.  232  et  seq.).  The  Institut  concluded 
to  rest  upon  the  results  of  the  discussion — certain  questions  were 
not  determined,  but  were  left  in  suspense  for  regulation  later. 
(Art.  4  of  Roguin's  proposal;  the  equahzing  of  the  non-merchant 
with  the  merchant;  the  position  of  minors,  interdicted  persons, 
etc.;  also  the  question  of  mortgages  and  priorities.) 

The  draft  treaty  of  Montevideo  (1889)  also  treated  of  bank- 
ruptcy, but  without  establishing  the  rule  of  universality.  The 
provisions  are  printed  in  the  papers  of  the  International  Amer- 
ican Conference  and  are  entitled,  Reports  of  Committees  and 
Discussions  Thereon,  Vol.  II,  pp.  900-902.* 

The  idea  of  the  universality  of  bankruptcy  is  at  first  sight 
most  captivating.  It  expresses  the  view  that  bankruptcy  pro- 
ceedings have  extraterritorial  effect,  that  they  affect  all  the 
assets  of  the  bankrupt  wherever  found,  and  that  the  adminis- 
trator in  bankruptcy  at  the  place  of  bankruptcy  may  distribute 
equitably  for  all  creditors.  But  as  soon  as  the  question  is 
approached  practically,  it  becomes  clear  that  Wharton  (Con- 
flict 0}  Laws,  §807)  not  unjustly  speaks  of  the  "  romantic  cosmo- 

'  Comp.,  e.  g.,  Gemma,  II  fallimento  net  rapporti  internazionali,  1897,  p. 
12.  The  whole  tendency  is  reflected  in  the  publication  of  Carle  entitled,  La 
doitrina  giuridica  del  jallimenlo  nel  diritto  privato  internazionale,  1872. 

'  Comp.  my  Geschichte  und  System  des  internationalen  Privatrechts  im 
Grundriss,  pp.  176-177. 

^  KOHLER  very  unfavorably  criticises  the  resolutions  of  the  Institut  de  droit. 
(Civilistisches,  Archiv  96,  pp.  348-349)  He  says  they  are  far  from  grasping  the 
difTiculties  of  the  question,  and  that  their  deliberations  cannot  be  regarded  as 
assisting  matters. 

^  The  provisions  are  also  to  be  found  in  my  Kodification  des  inkrnatio7mlen 
Zivil-und  Handelsrechts,  pp.  133-146,  and  in  Zeitschrijt  ji'ir  internationales 
Privat-mid  Strajrecht,  I,  480-482  (Heck). 


PAPER    OF    PROFESSOR    MEILI  159 

politan  efficacy"  of  the  bankruptcy  decree.'  To  effectuate  the 
bankruptcy  upon  assets  throughout  the  world  is  a  matter  of 
extraordinary  difficulty : 

1.  Because  of  the  diilusion  of  the  various  parts  of  the  estate. 

2.  Because  of  the  prosecution  of  claims  at  one  place — the  lin- 

guistic difficulties  may  here  be  referred  to. 

3.  Circumstances  which  may  arise  may  have  to  do  with  the 

credibility  of  foreign  officials,   the  firmness  of  foreign 

courts  in   dealing  with  doubtful  bankruptcies,  and   in 

seeing  that  all  creditors  are  treated  alike.     In  a  word, 

it  is  a  question  of  the  most  intense  mutual  confidence. 

Under  these  circumstances  The  Hague  Conferences  did  not 

attempt  to  elaborate  a  draft  treaty  intended  to  be  binding  upon 

all  the  participating  nations.     The  Conference  of  1904  satisfied 

itself  by  working  out  a  model  treaty  for  such  nations  as  may 

desire  to  enter  into  treaty  relations  upon  bankruptcy  with  each 

other,  permitting  each  state  to  determine  whether  or  not  it  will 

conclude  a  treaty  with  any  other.'^ 

Some  few  such  treaties  have  been  concluded  in  modern 
times,  sanctioning,  upon  this  modest  basis  and  between  the 
states  concluding  them,  the  universality  of  bankruptcy  proceed- 
ings. In  this  connection,  reference  is  to  be  made  to  the  follow- 
ing treaties: 

1.  Between  France  and  Switzerland,  1869  (Arts.  6-9  of  the  treaty 

on  the  jurisdiction  of  the  courts  treats  of  the  law  of  bank- 
ruptcy). 

2.  Between  France  and  Belgium,  1899,  Art.  8. 

3.  Between  Wurttemberg  and  Switzerland,  1826.     (The  treaties 

with  Bavaria  and  Saxony  do  not  go  so  far.) 

'  Comp.  also  Kleinfeller,  Die  Universitdt  der  Wirkungen  des  Konkurseriiff- 
nungsbeschlusses  in  Zeitschrijt  jiir  inlcrnationales  Privat-und  offentliches  Recht, 
XIII,  p.  549-574- 

*  There  are  also  treaties  dealing  with  bankruptcy  law  among  other  topics,  as 
for  instance,  certain  treaties  concluded  by  the  German  Empire  (comp.  Bohne, 
Die  Rdumliche  Herrschajt  der  Recht snormen,  1890,  pp.  212-214).  The  settle- 
ment and  consular  treaty  of  Italy  with  Switzerland  of  1868  also  contains  one 
provision  of  bankruptcy  law  (Art.  8). 


i6o     CONGRESS   OF   LAWYERS   AND   JURISTS 

III. 

The  question  may  be  asked  as  to  whether  other  nations  of 
the  world,  particularly  England  and  America,  are  in  a  position 
to  participate  in  The  Hague  Conferences  in  the  future,  and 
eventually  to  join  the  conventions  and  convention  drafts.  In 
this  connection  the  following  points  may  be  emphasized : 

1.  Att  affirmative  answer  may  be  given  in  regard  to  the  con- 
vention upon  the  international  law  oj  procedure. 

Here  we  have  a  neutral  subject-matter  that  is,  notwithstand- 
ing, of  considerable  importance  to  the  accompHshment  of 
justice.  It  is  imperative  that  justice  shall  triumph  throughout 
the  world,  and  particularly  also  in  connection  with  processual 
manoeuvres,  in  that  the  nations  obligate  themselves  mutually 
to  lend  a  helping  hand  in  the  matter  of  citations,  the  summoning 
of  witnesses,  the  taking  of  expert  testimony,  the  forwarding  of 
documents,  and  further,  in  that  they  undertake  to  open  the 
courts  of  justice  to  ahens  as  much  as  to  native  subjects,  without 
imposing  security  and  to  foreign  poor  persons  in  the  same 
manner  as  the  native,  etc.,  they  elevate  the  cause  of  justice  to 
the  rank  of  humanitarianism  and  give  it  the  stamp  of  universaUty. 
Only  in  this  way  can  they  fully  accomplish  the  ideal  task  of  justice. 

But  even  exclusive  of  the  fact  that  this  union  places  inter- 
national justice  upon  the  only  proper  basis,  a  much  fairer 
judgment  of  the  institutions  of  the  various  nations  is  arrived  at 
by  the  contact  of  their  legal  systems.  It  is  similar  to  the  process 
which  the  individual  undergoes  in  studying  the  language  and 
Hterature  of  another  people;  it  may  be  taken  as  certain,  that 
every  one  understanding  the  language  of  a  foreign  people  will 
more  justly  appreciate  their  institutions.  Furthermore,  the 
several  nations  are  but  a  part  of  a  greater  whole,  and  we  should 
be  sohcitous  of  the  welfare  of  the  whole  also  in  the  law. 

2.  Much  more  difficult  is  it  for  me  to  judge  the  situation 
in  regard  to  the  questions  oj  international  private  law,  embracing 
the  convention  now  ratified  by  seven  nations  and  the  projected 
conventions. 


PAPER    OF    PROFESSOR   MEILI  i6i 

In  this  connection  it  is  necessary  to  make  some  general 
remarks.  The  theories  and  rules  of  law  in  force  throughout 
the  world  upon  international  private  law  may  be  divided  into 
three  main  groups: 

a.  There  is  a  group  of  states  supporting  the  rule  that  their 

subjects  may  rely  upon  their  national  law  in  private 
matters  even  though  abroad,  especially  in  regard  to  the 
law  of  persons,  the  family,  and  succession,  and  that 
aliens  may  do  the  same  in  the  local  state.  This  practice 
is  followed  by  nearly  the  whole  of  Europe  with  the  excep- 
tion of  England,  Denmark,  Norway,  and  Switzerland. 

b.  There  is  a  group  of  states  in  which  the  law  of  the  momentary 

domicile  controls.  This  is,  according  to  Wharton,  the 
law  of  the  United  States  of  America  and  also  the  law  of 
the  Province  of  Quebec,  by  virtue  of  a  number  of  pro- 
visions of  the  Civil  Code  of  Lower  Canada,  e.  g..  Arts. 
6,  7,  8,  135,  599,  600,  776;'  this  is  also  the  law  of  Argen- 
tine and  of  the  treaty  of  Montevideo. 

Wharton,  in  his  Conflict  of  Laws,  Sec.  8,  calls 
nationahty  an  "unfair  standard  of  personal  law." 

c.  Another  group  of  states  looks  solely  to  the  law  of  the  place 

where  the  parties  are  located.  This  is  the  English  view. 
The  American  jurist  Dudley  Field,  in  his  Draft 
Outlines  of  an  International  Code  (under  title  of  personal 
capacity)  lays  down  the  following  principle  (Art.  542). 

The  civil  capacities  and  incapacities  of  an  individual  in 
reference  to  a  transaction  with  living  persons,  except  so  far  as 
it  affects  immovable  property  ....  are  governed  by  the  law 
of  the  place  where  the  transaction  is  had,  whatever  may  be 
his  national  character  or  domicile  or  the  place  of  his  birth. 
And  Dudley  Field  easily  deluded  himself  with  the  idea 
that  Europe  was  also  tending  in  this  direction,  for  he 
says:  "It  is  not  the  rule  now  recognized  by  European 
international  law  although  the  tendency  of  opinion  is  in 
this  direction.^' 

'  Comp.  E.  Lafleur,  The  Conflict  oj  Laws  in  the  Province  of  Quebec  (Mon- 
treal, 1898). 


i62      CONGRESS   OF  LAWYERS   AND   JURISTS 


A  kind  of  juristic  dogma  has  existed  upon  the  Continent  of 
Europe  for  several  decades,  referrable  to  the  new  ItaHan  school 
founded  by  Mancini,  an  Italian  jurist  and  statesman,  to  the 
effect  that  the  national  law  and  statute  represent  the  authorita- 
tive and  only  standard  in  international  matters.  Sir  Walter 
Phillimore,  in  his  address  before  the  International  Law 
Association  at  Glasgow,  1901,  spoke  of  the  "more  modern 
school  of  French  jurists.'"  This  is  an  error.  The  doctrine 
is  traceable  to  Italy,  and  hence  we  may  speak  of  the  new  Italian 
school.^  It  arises  partly  from  pohtical  considerations  in  that 
it  is  believed  that  the  development  of  a  people  into  a  unified 
nation  necessarily  requires  that  its  subjects  be  respected,  as 
such,  also  abroad  and  be  considered  as  subject  to  national  law 
in  matters  of  civil  law.  But  this  is  also  an  error.  I  recognize 
thoroughly  that  the  lex  patriae  should  give  the  standard  in 
many  branches  of  international  private  law,  but  I  deny  that  this 
principle  can  claim  absolute  control;  it  did  not  stand  the  test 
of  practical  life  in  which  I  was  long  active.  I  was  never  too 
tired  to  point  out  that  a  reconcihation  should  be  accomplished 
between  the  two  main  principles,  and  I  have  stated  that  the 
task  of  jurisprudence  should  be  scientifically  as  follows:^ 

"We  should  demarcate  those  elements,  on  the  one  hand,  which 
permit  the  lawmaker  to  give  effect  to  the  law  of  the  domicile  or 
sojourn,  and  on  the  other  hand,  those  which  influence  him  to  promote 
and  effectuate  the  continuance  of  that  public  bond  which  connects 
the  individual  with  his  native  (home)  state." 

I  have  also  continually  supported  this  idea  of  reconcihation 

*  Comp.  Report  of  the  Twentieth  Conference,  p.  230,  where  W.  Phillimore 
says,  "The  more  modern  school  of  French  jurists  would,  if  I  understand 
them  aright,  reject  the  lex  domicilii  and  substitute  for  it  the  national  law." 

^  Comp.  my  handbook,  Internationales  Civil  und  Handclsrecht,  I,  p.  120 
ei  seq.;  Kuhn's  translation,  §35  et  seq.  The  first  Itahan  school  may  be  asso- 
ciated with  the  name  of  Baktolus. 

2 1  made  this  proposal  in  my  pamphlet  (out  of  print):  Der  erste  europaische 
Staatenkongress  fiber  inter nationales  Privatrecht  (1894),  p.  10;  in  my  address, 
Der  internationale  Geist  in  der  Jurisprudenz  (Zurich,  1897),  p.  27;  in  my  article, 
Das  Problem  des  internationale  Privatrechts  in  Oesterreichischen  Centralblatt 
jiir  die  juristische  Praxis,  V,  pp.  193-222;  in  my  article:  Ueber  das  historische 
Debut  der  Doktrin  des  internationalcn  Privat-und  Strajrechl  (Leipzig,  1899), 
p.  12,  and  in  my  handbook:  Internationales  Civil  und  Handelrecht,  I,  p.  164- 
167,  Kuhn's  translation  §45. 


PAPER    OF    PROFESSOR    MEILI  163 

at  the  Conferences  (Actes  1893,  P-  69;  Actcs  1894,  p.  37;  Actes 
1900,  pp.  85-87).  And  again,  in  1904, 1  referred  to  the  necessity 
of  sanctioning  a  senlentia  media — I  was  supported  in  this  by 
my  colleague,  Roguin,  with  a  proposal  relating  to  succession, 
although  indeed  I  had  certain  doubts  as  to  its  practicabihty. 
A  reconciliation  might  be  accomphshed: 

1.  By  setting  a  period  of  time  after  which  ahens  domiciled  in 

the  local  state  shall  be  subject  to  local  private  law — 
say  a  period  of  five  or  ten  years.  We  would  not  by 
this  force  aliens  to  surrender  their  foreign  nationality. 

2.  By  respecting  partly  the  national  law  and  partly  the  domi- 

ciliary law.     This  middle  way  would  be  possible: 

a.  In  the  law  of  persons  as  to  the  status. 

b.  In  family  law  in  regard  to: 

a.  Matrimonial  property. 

/8.  Divorce. 

r.  Guardianship. 

3.  By  making  children  of  ahens  born  in  the  local  state  subjects 

of  that  state. 
These  ideas,  I  believe,  would  find  favor  more  easily  with 
the  Anglo- American  legal  world  than  with  the  jurists  of  the 
European  Continent.  And  perhaps  I  would  have  had  a  greater 
chance  of  success  if  England  and  America  had  participated  in 
the  Conference — at  any  rate,  I  always  regretted  that  these 
nations  were  missing  at  The  Hague.^  An  unlimited  emphasis 
of  the  importance  of  the  lex  patriae  is  injurious  to  the  unity  of 
private  law;  for  this  is  destroyed  when  aliens  can  claim  the 
apphcation  of  their  national  law  in  the  local  state.  Particularly 
bad  would  be  the  situation,  where  (as  in  America  and  Switzer- 
land) many  foreigners  reside.     On  the  other  hand,  it  is  difficult 

'  I  stated  my  regret  at  the  absence  of  the  Anglo-American  race  already  in 
my  pamphlet,  Der  erste  europdische  Staatenkongress  iiber  das  internatioruile 
Privatrecht,  Vienna,  1894,  pp.  13-14.  In  my  handbook,  I,  p.  23  (Kuhn's  trans- 
lation International  Civil  and  Commercial  Law  §5,  II,  6),  I  pointed  out  that 
representatives  from  England  and  America  would  have  counteracted  the  exag- 
gerated importance  given  to  the  lex  patriae.  So,  also,  in  my  Internationales 
Civilprozessrecht,  p.  26,  Simeon  E.  Baldwin  is  of  a  contrary  opinion.  Comp. 
Harvard  Law  Review,  XVII,  p.  402,  and  Columbia  Law  Review,  IV,  p.  307. 


i64      CONGRESS   OF   LAWYERS  AND   JURISTS 

to  fight  against  articles  of  faith  in  jurisprudence,  for  that  is 
really  what  we  have  in  the  lex  patriae  principle.  Small  states, 
like  Switzerland,  are  in  an  especially  unfortunate  situation, 
for  they  must  follow  the  weight  of  authority  of  theory  and 
practice  even  though  little  convinced  of  its  correctness. 

I  am,  on  the  other  hand,  glad  to  see  that  the  unlimited  con- 
trol of  territoriality  (English  conception)  and  of  the  lex  domicilii 
(American  conception:  Wharton)  is  being  shaken.  In  the 
address  of  Sir  Walter  Phillimore  before  the  International 
Law  Association  at  Glasgow  {Report  of  the  Twentieth  Conjerence, 
p.  230)  he  makes  the  following  noteworthy  remarks  in  men- 
tioning the  new  school  for  the  application  of  national  law:  "I 
have  a  great  sympathy  with  this  school,  and  I  see  much  that 
would  be  gained  in  simplicity  and  certainty  by  substituting  in 
all  questions  of  personal  status  the  national  law  for  the  law 
of  the  domicile."  These  words  represent  the  strongest  criticism 
of  the  comments  of  the  most  reputed  English  and  American 
authors  (Westlake,  Wharton,  Story,  Dudley  Field).  // 
these  ivords  would  gradually  gain  favor  in  English  and  A  merican 
legal  circles,  there  would  be  hope  for  the  reconciliation  of  the  two 
main  principles,  as  proposed  by  me,  and  it  would  then  be  possible 
to  accomplish  uniform  rules  of  conflict  between  the  Old  and  the 
New  World,  by  concessions  made  on  both  sides. 

But,  in  the  mean  time,  I  seriously  doubt  whether  the  time 
has  yet  arrived  for  England  and  America  to  join  the  conven- 
tions. A  different  question  is  that,  as  to  whether  these  nations 
should  not  be  represented  at  the  conferences  ad  audiendum  et 
referendum.  The  divergencies  in  the  theories  upon  the  inter- 
national private  law  are — even  exclusive  of  the  personal  statute — 
very  considerable.  I  will  here  merely  recall  the  fact  that  accord- 
ing to  one  of  the  leading  tendencies  in  English  and  American 
law,  immovables  are  governed  by  the  law  of  their  situation. 
This  is  true  in  regard  to: 

a)  The  capacity  to  act. 

b)  The  form  of  legal  transactions. 

c)  The  law  of  succession. 


PAPER    OF    PROFESSOR   MEILI  165 

I  refer  to  the  following  statements  made  by  leading  author- 
ities : 

Story  {Conflict  0}  Laws,  §424  et  seq.):  "The  general  prin- 
ciple of  the  common  law  is  that  the  laws  of  the  place  where  such 
property  is  situate  exxlusively  govern  in  respect  to  the  right  of 
the  parties,  the  modes  of  transfer,  and  the  solemnities  which 
should  accompany  them." 

Art.  586  of  Dudley  Field's  code  provides: 

"The  succession  of  the  immovable  property  of  one  who  dies 
intestate  as  to  such  property  is  determined  exclusively  by  the  law 
of  the  place  in  which  the  immovables  are  locally  situate." 

Wharton  (Conflict  0}  Laws,  §560)  expresses  himself  with 
assurance  as  follows:  "The  law,  both  in  England,  the  United 
States,  and  France,  is  clearly  settled  that  in  those  countries 
in  matters  of  succession,  realty  is  governed  by  the  lex  rei 
sitae. 

Kent  {Commentaries  on  American  Law,  12  Ed.  [Holmes] 
II,  pp.  429-431):  This  jurist  assumes  to  assert  that  it  is  well 
settled  in  the  law  of  all  civilized  countries,  that  real  property 
as  to  its  tenure,  mode  of  enjoyment,  transfer  and  descent,  is 
to  be  regulated  by  the  lex  loci  rei  sitae. 

Now,  it  must  be  said  that,  particularly  in  North  America, 
there  is  no  adequate  legal  ground  for  the  control  of  the  locus 
of  the  property  in  regard  to  immovables  when  not  concerning  the 
determination  of  real  rights,  for  feudahsm,  so  far  as  I  know,  was 
never  introduced  in  America  as  it  existed  in  Europe.  The 
theor)'  that  wherever  immovables  are  in  question  (the  law  of 
persons,  obhgations,  succession),  the  law  of  the  situation  of  the 
property  must  govern  was  brought  over  from  England  essentially 
as  a  kind  of  colonial  freight  and  England  took  the  rule  from 
the  Netherlands — even  rules  of  law  may  be  traced  to  race 
wanderings.  But  even  without  considering  feudalism  and  the 
journey  that  the  theory  made,  it  is  urgently  to  be  desired  that 
England  and  America  relinquish  the  unlimited  reference  of 
immovables  to  the  place  of  situation;  the  rule  is  to  be  confined 
to  real  rights.     It  should  especially  not  be  apphed  in  the  law  of 


i66     CONGRESS   OF  LAWYERS   AND   JURISTS 

succession,  because  the  estate  as  a  unity  can  and  should  be 
subjected  to  only  one  system  of  law. 

Still  it  would  he  mistaking  the  "tempo"  oj  history  to  demand 
oj  the  Anglo-American  sphere  oj  jurisprudence  to  alter,  as  it 
were,  from  one  day  to  the  other,  conceptions  to  which  the  people 
have  become  attached.  For  this  is  required  a  longer  time,  more 
detailed  study,  comparative  research,  and  the  enlightenment 
of  younger  generations. 

It  is  also  true  that  there  are  European  nations  whose  systems 
of  law  still  support  the  doctrines  of  the  lex  rei  sitae  in  regard  to 
immovables,  e.  g.,  France,  Austria,  Russia.  But  in  the  first 
two  countries,  at  least,  the  soundness  of  the  theory  has  been 
entirely  destroyed,  and  there  is  no  longer  any  faith  in  it.  Even 
in  Russia,  the  celebrated  jurist  v.  Martens  is  against  it  "en 
pure  theorie."^  In  England  and  America,  however,  it  is  an 
article  oj  legal  jaith,  and  we  all  know  how  difficult  it  is  to  rejorm 
it;  this  particularly  so  of  a  people  who  are  very  conservative 
in  legal  matters.'^  No  author  has  opposed  the  controlling 
view  in  these  countries. 

There  is  perhaps  one  treaty,  namely  that  upon  entrance 
into  marriage,  which  might  be  acceptable  to  England  and 
America,  for  the  very  reason  that  in  Art.  i  other  systems, 
besides  the  national  law,  are  reserved  for  application.  Refer- 
ence may  here  again  be  made  to  a  recent  discussion  by  Sir 
Walter  Phillimore  (Report  oj  Twentieth  Conference  oj  the 
International  Law  Association,  1901,  p.  288  et  seq.).  This 
jurist  favors  even  extending  the  conditions  for  a  valid  marriage, 
for  he  proposes  the  following  (238) : 

"The  essentials  of  marriage  should  be  regulated  by  the  personal 
law  and  by  the  /ex  loci;  both  should  be  complied  with." 

In  my  opinion,  this  cumulation  again  goes  too  far,  but  it 

'  Martens-Lko,  Droit  international,  II,  p.  455. 

'  This  is  shown  also  as  to  the  limitation  of  actions.  Wharton,  §545, 
points  out  that  European  jurists  arc  opposed  to  determining  limitations  by  the 
lex  jori;  the  reasons  he  gives  are  sound,  but  he  holds  to  the  practice.  Why .' 
"The  rule  is  now  too  firmly  settled  to  be  shaken."  Comp.  my  handbook,  I,  p. 
2io:  A.  K.  Kuhn's  translation,  §56. 


PAPER    OF    PROFESSOR    MEILI  167 

shows  plainly  how  Phillimore  has  relinquished  the  belief  in 
salvation  solely  through  the  lex  domicilii! 

The  Hague  conventions  were  the  subject  of  a  general  dis- 
cussion before  the  International  Law  ^Association  in  Antwerp, 
1903.  Sir  Walter  Phillimore  made  an  address  also  here  and 
discussed  "the  advisabihty  of  the  British  Government  taking 
part  in  the  legal  conference  at  The  Hague  on  private  inter- 
national law"  {Report  oj  Twenty-first  Conference,  1904,  p.  80). 
Phillimore  here  regretted  that  Great  Britain  has,  up  to  the 
present,  not  participated  in  The  Hague  Conference  (and  also  in 
other  conferences  upon  maritime  law).  Sir  William  Kennedy 
(Judge  of  the  High  Court  of  Justice  in  London)  proposed  a 
resolution  (p.  85)  which  was  accepted  (p.  93): 

"That  this  Conference,  considering  the  great  importance  of  the 
co-operation  of  the  Government  of  Great  Britain  in  relation  to 
International  Conventions  for  such  purposes  as  are  set  forth  in  Sir 
Walter  Phillimore's  paper,  resolves  that  it  is  desirable  that  the 
Executive  Council  of  this  Association  should  take  steps  respectfully 
to  lay  before  the  British  Government  the  points  dealt  with  in  that 
paper,  together  with  this  resolution,  and  to  obtain  permission  for  the 
audience  of  a  deputation  for  the  purpose." 

But  even  though,  in  my  opinion,  the  time  is  not  yet  ripe 
for  England  and  America  to  join  all  The  Hague  conventions, 
the  time  may,  nevertheless,  become  ripe.  This  is  the  hope  I 
wish  to  express  here,  and  this  leads  me  to  a  brief  recapitulation 
of  my  ideas. 

Resume 

The  significance  and  scope  of  the  Conferences  which  have 
taken  place  at  The  Hague  so  far  as  concerns  other  nations  may 
be  recapitulated  as  follows: 

I.  It  has  been  proved  in  Europe  that  the  gradual  elaboration  of 
rules  upon  the  private  conflicts  of  law,  or  if  one  prefers,  a  code  of 
international  private  law,  by  means  of  treaties,'  is  not  an  illusion. 

'  Comp.  Fr.  Kahn,  Die  einheitliche  Kodifikation  des  internationalen  Privat- 
rechts  diirch  Staatsvertriige,  (Leipzig,  1904);  CoNTUZzr,  Le  conferenze  di  diritto 
internazionale  private  aWAja,  (Napoli,  1904),  advances  some  general  \iews 
upon  the  duty  of  Europe  to  codify  international  private  law  upon  the  basis  of 
the  international  conferences  held  at  The  Hague  (pp.  312-320). 


i68     CONGRESS   OF  LAWYERS   AND   JURISTS 

Speaking  generally,  this  result  of  The  Hague  Conferences 
is  of  the  highest  importance,  for  it  furnishes  a  noteworthy  con- 
trast to  the  treaty  projects  elaborated  by  the  South  and  Central 
American  states  at  Lima  in  1878  and  at  Montevideo  in  1889.' 

IL  It  is  of  special  importance  to  note  that  the  only  proper 
procedure  was  adopted  at  The  Hague;  the  details  of  the  ques- 
tions must  be  approached  and  the  time  of  general  axioms,  the 
significance  of  which  were  for  so  many  centuries  held  in  the 
foreground,  has  passed  away. 

Further  endeavors  must  be  characterized  by  the  same  speciali- 
zation of  the  questions,  as  has  already  proved  so  practical. 

III.  It  is  indeed  true  that  after  four  conferences  held  at  The 
Hague  we  are  merely  at  the  beginning  of  our  task,  and  that  it  is 
particularly  necessary  to  cultivate  the  study  of  international 
private  law  in  all  countries  more  thoroughly  and  in  detail  than 
heretofore.  A  noble  competition  should  be  called  forth  among 
the  jurists  of  the  whole  world.  Only  thus  can  the  universal 
uniformity  of  the  rules  of  conflict  be  kept  seriously  in  mind. 
This  international  tractandum  must,  of  course,  be  approached 
from  the  international  and  universalistic  point  of  view  if  it  is  to 
be  properly  accomplished. 

In  order  to  arrive  at  a  practical  result,  various  dangers  must 
be  avoided. 

IV.  The  subject-matter  must  be  approached  in  a  system- 
atic and  methodical  manner,  and  all  hurry  and  stress  should  be 
carefully  avoided.  There  is  plenty  of  time  at  the  disposal  of  the 
world's  progress."  Of  course,  all  progress  demands  a  certain 
trend  toward  ideal,^  but  the  attempt  to  complete  a  great  plan 

'  I  liiive  had  these  treaty  projects  re-printed  in  my  publication,  Die  Kodifika- 
tion  dcs  intcrnationalen  Ctvil-und  Handelsrecht  (Leipzig,  1891). 

^  Brocher,  Cours  de  droit  international  prive  suivant  les  principes  consacres 
par  le  droit  positi)  Francois,  II,  p.  428,  is  of  the  same  view  when  he  states:  "II 
ne  faut  pas  se  le  dissimuler:  les  antecedents  historiques  et  la  position  actuelle  de 
certains  Iitats  s'opposeront  longtcmps  encore  a  ce  que  I'unite  se  fasse  d'une 
maniere  plus  ou  moins  absolute;  c'est  un  but  qu'il  faut  se  proposer  d'atteindre 
sans  y  mcttre  trop  d'impatience." 

^  There  is  no  doubt  a  certain  international  trend  in  England,  in  more  recent 
times,  that  is  much  to  be  approved.  Thus,  G.  G.  Phillimore,  in  the  Journal 
0}  the  Society  of  Comparative  Legislation  (1904),  expresses  himself  in  favor  of 
England  joining  the  international  union  relating  to  railroad  freight  law. 


PAPER    OF    PROFESSOR   MEILI  169 

upon  the  spot  usually  meets  with  doubtful  success,  although, 
indeed,  the  Pan-American  Congress  (held  in  Mexico,  1901-02), 
concluded  that  a  code  of  international  private  law  could  be 
elaborated  in  the  shortest  time  by  a  commission  of  five  American 
and  two  European  jurists. 

We  may  here  recall  the  fact  that  two  historical  predecessors 
of  The  Hague  Conferences  remained  fruitless,  viz,  the  efforts 
of  the  Netherlands  in  1874  to  call  a  conference  for  an  under- 
standing upon  the  execution  of  foreign  civil  judgments,  and  the 
efforts  of  Mancini  in  1881.  From  this  it  is  not  dilSicult  to 
deduce  that  all  new  works  require  that  the  foundation  be  care- 
fully prepared,  and  this  has  been  done  particularly  by  the  labors 
of  the  Institut  de  droit  international,  and  in  part  also  by  those 
of  the  International  Law  Association. 

V.  If  we  are  to  work  toward  accomplishing,  in  the  natural 
tempo  of  history,  universal  uniformity  in  the  rules  of  conflict,  it 
is  especially  necessary  that  all  nations  take  a  lively  interest  in 
international  private  law;  that  particularly  Anglo-American 
jurisprudence  shall  reform  its  views  on  certain  topics;  that 
England  and  America  shall  carefully  study  and  test  the  questions 
discussed  at  The  Hague  Conferences,  in  order  to  determine 
whether  they  will  participate  in  them  in  future.' 

In  answering  this  question,  the  error  already  made  in  Eng- 
land should  not  be  repeated.  The  tendency  toward  establish- 
ing cosmopolitan  rules  of  conflict  leaves  the  national  autonomy 
of  each  state  wholly  untouched  as  regards  its  substantive  private 
law;  in  fact,  an  agreement  as  to  rules  of  conflict  presupposes  the 
existence  of  divergent  systems  of  private  law.  When,  there- 
fore, in  1893,  England  refused  to  participate  in  the  conferences 
at  The  Hague  because  of  the  peculiar  nature  of  English  private 
law,  it  was,  in  my  opinion,  the  result  of  an  error  as  to  the  task 
and  purpose  of  those  conferences." 

*  I  refer  to  the  remarks  of  Simeon  E.  Baldwin  in  his  article,  "Recent  Pro- 
gress Towards  Agreement  on  Rules  to  Prevent  a  Conflict  of  Laws,"  in  Har- 
vard Law  Review,  April,  1904,  p.  404. 

^  The  statement  of  Councillor  Asser  at  the  First  Conference  (September  12, 
1893)  seems  to  me  to  be  sound  when  he  says  {Actes  de  la  Conference  de  la  Haye, 


170     CONGRESS   OF  LAWYERS   AND   JURISTS 


This  conception  accords  also  with  the  reply  given  by  Lord 
Granville  in  1881  to  the  memorandum  of  the  Itahan  minister, 
Mancini,  to  the  effect  that  an  understanding  might  be  arrived 
at  in  regard  to  the  following  subjects:  nationahty,  mixed  mar- 
riages, domicile,  succession,  droit  d'aubaine,  and  the  execution 
of  foreign  judgments  (Journal  du  droit,  i,  XIII,  1886). 

VI.  It  is  further  absolutely  necessary  that  international 
private  law,  as  an  independent  branch  of  law,  be  methodically 
taught  and  studied  in  all  countries,  at  least  at  the  great  univer- 
sities. In  other  words,  independent  professorships  should  be 
founded,  and  in  this  regard  America,  with  its  munificent 
patrons  of  universities,  can  light  the  way  to  many  of  the  nations 
of  Europe.' 

Of  course,  as  an  accompaniment,  comparative  jurisprudence'' 
should  also  receive  special  attention  at  the  universities. 

VII.  It  would  also  be  practical  to  establish  private  or  offi- 
cial commissions  in  the  principal  countries  for  the  special 
purpose  of  studying  the  subject  of  international  private 
law,  and  make  proposals  for  legislation  and  the  conclusion 
of  treaties. 

This  practice  has  been  followed  in  France,  the  Netherlands, 
Belgium,  and  Russia,  these  states  being  thus  inspired  by  the 
spirit  of  The  Hague  Conferences. 

VIII.  It  is  also  imperative  that  officially  conducted  legal 
bureaus  be  created  in  every  country,  for  the  purpose  of  giving 
correct  information  to  foreign  courts  as  to  the  existing  private 
law.  Parties,  advocates,  and  judges  are  frequently  in  an  unfor- 
tunate situation  because  of  not  knowing  where  and  how  to 

1893,  p.  26) :  "Nous  respecterons  la  souverainete  et  rautonomie  des  fitats.  Nous 
n'aspirons  pas  a  I'unification  generale  du  droit  prive.  Au  contraire,  c'est 
precisement  la  diversite  des  lois  nationales  qui  fait  sentir  la  necessite  d'une 
solution  uniforme  des  conflits  internationaux. 

"  Le  programme  de  cette  Conference  est  done,  en  lui  meme,  un  eclatant  hom- 
mage  a  I'autonomie  nationale." 

'  I  have  often  referred  to  this  necessity;  I  did  this  as  early  as  1889,  in  my 
publication :  Die  interna tionalen  Unionen  I'iber  das  Recht  der  Weltverkehrsan- 
staltcn  und  des  geistgen  Eigenlutns  (Leipzig,  1889),  p.  77. 

^  I  may  here  refer  to  my  publication,  Institutionen  der  vergleichenden 
RechtsiL<issenschajl.  Ein  Gru'ndriss  (Stuttgart,  1898).  I  made  therein  a  col- 
lection of  materials. 


PAPER    OF   PROFESSOR   MEILI  171 

obtain  this  information — this  applies  with  special  force  to  the 
Anglo-American  sphere  of  law.  In  saying  this,  I  nevertheless 
recognize  that  the  American  Academy  of  Political  and  Social 
Science  has  done  good  service  in  propagating  the  knowledge  of 
foreign  laws. 

//  must  he  clear  to  us  all  that  by  virtue  0}  the  facility  of  travel 
from  state  to  state,  and  from  one  part  of  the  world  to  the  other, 
international  intercourse  is  making  continual  and  praiseworthy 
progress.  Both  jurisprudence  and  legislation  must  keep  on  a 
parallel  with  this  condition  of  things.  It  is  to  this  tendency  that 
The  Hague  Conferences  owe  their  existence.  The  Government 
of  the  Netherlands  and  the  promoter  of  the  idea,  State-Councillor 
AssER,  of  The  Hague,  are  primarily  the  heralds  which  have 
announced  the  legal  demands  of  the  times.  And  if  the  nations 
show  their  good  will,  the  work  begun  at  The  Hague  may  easily 
be  the  starting-point  of  an  important  development  in  jurispru- 
dence. Nothing  is  so  clear  as  this,  that  international  private 
law  can  only  be  really  great,  significant,  and  effective  if  the  rules 
laid  down  are  recognized  in  equal  degree  the  world  over.  For 
this  purpose  is  required,  besides  an  enthusiastic  desire  for 
justice,  methodical  work,  thorough  study,  and  continual  instruc- 
tion. When  I  recall  that  jurisprudence  has  often  been  given 
new  impulses  at  world's  fairs,  I  am  led  to  hope  that  the  history 
of  the  St.  Louis  Exposition  may  announce : 

"That  international  private  law  was  given  new  energy  and  new 
fruit  at  St.  Louis,  in  that  there  the  necessity  was  pointed  out  that  all 
states,  and  especially  those  of  the  English  and  American  sphere  of 
law  must  approach  those  of  Europe  in  regard  to  their  rules  of 
conflict,  upon  the  basis  of  The  Hague  Conferences,  and  that  this 
branch  of  law  may  flourish  only  if  supported  by  the  spirit  of  uni- 
versality." 

In  conclusion,  I  would  say  that  this  spirit  of  universahty 
must  be  everywhere  encouraged.  It  is  in  this  way  that  interna- 
tional intercourse  and  the  science  of  international  private  law 
will  make  great  progress.'     [Applause.] 

'  See  Appendix  B  for  the  text  of  the  various  Hague  conventions  and  con- 
vention projects. 


172      CONGRESS   OF   LAWYERS   AND   JURISTS 

The  President: 

We  are  now  to  listen  to  a  discussion  of  these  papers  and  this 
subject  by  our  well-known  friend,  Judge  Baldwin,  of  Connec- 
ticut. 

Judge  Baldwin,  of  the  Supreme  Court  of  Errors  of 
Connecticut,  a  Delegate  of  the  United  States  Government: 

Mr.  President  and  Gentlemen  of  the  Congress:  A  congress 
like  this,  sitting  but  for  three  days,  however  distinguished  may 
be  its  membership,  cannot  justly  hope  to  accomphsh  much  of 
original,  constructive  work,  but  it  serves  a  useful  and  important 
office  in  offering  an  opportunity  for  an  exchange  of  views  and 
an  exchange  of  information. 

We  have  been  fortunate  in  having  had  to-day  brought  before 
us,  in  clear  review,  the  doings  of  these  four  conferences  of  The 
Hague  for  the  advancement  of  private  international  law,  con- 
ferences which  many,  I  am  afraid,  of  the  bar  in  all  countries, 
have,  in  an  indistinct  way,  confused  with  the  greater  Conference 
of  1899,  by  which  The  Hague  Tribunal  was  constituted.  But, 
as  shown  by  the  papers  this  afternoon,  two  of  these  congresses 
long  preceded  that  and  two  followed  it,  one  having  been  held 
this  summer,  of  which  the  gentleman  who  last  addressed  us 
was  a  distinguished  member. 

We  know  well  in  the  United  States  how  important  to  the  bar 
and  to  the  bench  is  this  subject  of  preventing  a  conflict  of  laws. 
Here  we  have  forty-five  different  sovereignties,  each  with  full 
local  jurisdiction  and  equal  in  autonomy — subject,  to  be  sure, 
in  national  affairs,  to  another  sovereignty,  but  subject  to  it  in 
national  affairs  only.  In  framing  the  program  of  this  Congress, 
the  committee  of  the  American  Bar  Association,  to  whom  it 
was  intrusted,  took  special  pains  to  have  what  the  powers  of 
Europe  have  been  doing  of  late  towards  preventing  a  conflict 
of  laws  there  fully  presented,  and  it  is  our  rare  good  fortune  to 
have  had  such  complete  reports  of  the  last  Hague  Conference, 
which  adjourned  only  in  June. 

It  is  now  thirty  years  since  the  Government  of  the  Nether- 


JUDGE    BALDWIN  173 


lands,  represented  here  by  our  distinguished  friend,  Professor 
JiTTA,  initiated  a  movement  in  this  direction.  It  takes  at  least 
the  space  of  a  generation  for  any  great  advance  in  international 
relations  to  become  fully  established.  In  1874,  as  was  men- 
tioned by  Professor  Meili,  the  Netherlands  proposed  in  vain  to 
the  powers  of  Europe  the  convocation  of  a  conference  to  estab- 
lish a  judicial  union  between  them  under  which  the  courts  and 
governments  of  each  should  recognize  a  personal  status  acquired 
in  any  other,  and  under  which  rules  should  be  framed  for  the 
enforcement  of  foreign  judgments. 

Now,  in  1904,  the  Netherlands  have  the  happiness  of  seeing 
the  results  thus  aimed  at  largely  achieved. 

England,  as  Professor  Meili  has  stated,  was  approached  by 
the  Government  of  the  Netherlands  with  an  invitation  to  join 
in  the  first  of  these  conferences  in  1893,  but  decHned.  Her 
government  felt  the  substratum  of  her  laws  and  her  judicial 
system  differed  too  widely  from  that  of  Continental  Europe  to 
warrant  her  adhesion  to  the  movement,  and  I  dare  say  if  the 
United  States  had  received  a  similar  invitation,  it  would  have 
been  declined  for  similar  reasons,  especially  in  view  of  our  con- 
stitutional limitations.  The  Anglo-American  distinction  be- 
tween real  and  personal  property  is  so  deeply  rooted  that  any- 
thing calculated  to  unsettle  it  must  be  looked  upon  by  the  English 
or  American  bar  with  some  distrust,  if  not  disfavor.  But  is  it 
not  evident  that,  on  principle,  this  distinction  has  long  ceased 
to  occupy  its  original  position  ?  The  day  when  a  man  or  family 
was  known  by  the  land  on  which  they  had  their  home,  and  when 
it  was  the  tenure  of  that  land  which  measured  a  man's  main 
rights  as  a  citizen,  or  as  a  ruler,  has  passed  away.  How  many 
families  in  countries  recognizing  a  hereditary  and  landed  aris- 
tocracy are  to-day  the  owners  of  the  estate  from  which  they 
originally  derived  their  names  ?  The  proudest  house  in  Europe, 
the  House  of  Hapsburg,  I  believe,  if  it  sought  its  original  ances- 
tral domain,  would  find  it  in  the  hands  of  strangers,  in  the  canton 
of  Neuchatel,  in  the  Swiss  RepubHc. 

The  political  reasons  for  controlling  succession  to  land  by 


174     CONGRESS   OF   LAWYERS  AND   JURISTS 

the  laws  of  the  country  in  which  it  lies  are  also  no  longer  what 
they  were.  Its  ownership  gives  few  and  continually  fewer 
political  rights.  Its  economic  significance  as  a  form  of  capital 
is  steadily  declining.  It  has  been  replaced  in  this  respect  by 
the  modern  private  corporation.  Great  and  small  fortunes 
alike,  we  all  know,  are  largely,  if  not  mainly,  made  up  of  cor- 
porate securities,  not  land.  Let  the  American  or  English 
lawyer  once  bring  himself  to  recognize  the  fact  that,  except  as 
a  subject  of  taxation,  land  considered  as  private  property  now 
stands  to  the  government  in  no  relation  different  in  kind  from 
that  borne  by  property  of  any  other  description,  and  he  will  find 
it  not  difficult  to  look  upon  the  settlement  of  successions  and 
bankruptcies  and  the  management  of  guardianships  from  the 
standpoint  of  Continental  Europe. 

A  more  serious  difficulty,  perhaps,  is  that  Anglo-American 
law  centers  all  that  pertains  to  the  civil  status  of  the  individual 
in  his  home,  in  his  domicile,  and  does  not  test  it  by  his  nation- 
ality. When,  as  a  hundred  years  ago,  here  and  everywhere, 
nationality  was  unchangeable  except  by  the  express  consent  of 
the  sovereign,  there  was  a  reason  for  preferring  domicile.  That 
could  be  freely  chosen;  but  now  nationality  can  be.  The  old 
maxim,  nemo  patriam  in  qua  natus  est  exuere  nee  ligeanliae 
dehitum  ejurare  possit,  has  perished,  and  has  perished  largely 
by  the  efforts  of  statesmen  and  the  provisions  of  treaties  during 
the  last  generation. 

This  removes  one  great  objection  to  domicile  and  argument 
in  favor  of  nationality  as  a  test  of  property  rights  and  property 
succession.  On  the  other  hand,  in  some  countries,  and  espe- 
cially in  that  where  we  are  met,  it  adds  another  objection  against 
nationality.  The  emigration  of  foreigners  into  the  United 
States,  with  the  purpose  of  settling  here,  either  temporarily  or 
permanently,  is,  as  you  know,  immense  and  increasing.  Natur- 
alization, if  they  wish  it,  cannot  be  had  for  five  years.  Mean- 
while they  may  acquire  a  domicile.  If  they  die  during  that 
time,  or  if  they  marry  during  that  time,  or  a  great  change  in  their 
property  relations  occurs,  it  might  be  awkward  for  American 


JUDGE    BALDWIN  175 

courts  to  search  out  and  apply  a  foreign  law  to  determine  the 
questions  that  arise  because  it  was  the  law  of  their  original 
nationahty.  I  do  not,  however,  think  (and  I  am  glad  to  agree 
with  Professor  Meili  in  that),  that  these  difficulties  arising  out 
of  a  choice  of  nationahty  rather  than  domicile  at  The  Hague 
Conferences,  as  a  test  of  personal  status,  and  the  distinction  be- 
tween land  and  other  property  so  peculiar  to  England  and 
America,  are  fatal  necessarily  to  their  acceptance  of  the  prin- 
ciples of  these  Hague  Conferences,  and  I  hope  that  the  wish 
expressed  by  Doctor  Jitta  may  be  reahzed,  and  that  in  future 
conferences  of  this  character  the  invitations  of  the  powers  ex- 
tending them  may  not  be  limited  to  a  single  continent. 

It  is  international  conferences  like  these,  Mr.  President, 
that  are  bringing  the  civihzed  world  together  in  matters  of  gov- 
ernmental regulation.  They  are  not  called  to  deal  with  great 
generalities.  They  are  called  to  deal  with  practical  questions 
of  present  importance.  They  have  respect  to  the  property  rela- 
tions of  private  individuals.  They  may  make  use  of  existing 
governmental  agencies — I  mean  the  courts  of  justice  of  the 
powers  concerned.  They  deal  with  particulars  rather  than  with 
universal  propositions,  and  lavv^ers  know  that  to  attempt  every- 
thing is  to  fail  in  everything. 

I  have  referred  to  the  constitutional  hmitations  which,  in  the 
United  States,  have  an  important  bearing  on  any  project  for 
regulating  by  treaty  matters  of  international  private  law.  The 
United  States,  as  a  nation,  can  hardly,  under  present  conditions, 
so  far  change  their  political  traditions  as  to  extend  the  treaty 
power  to  a  concert  of  legislation  on  matters  of  such  a  character, 
which  are  purely  local  in  their  nature,  with  nations  on  other 
continents.  The  States,  acting  individually,  could  not  become 
parties  to  such  a  concert,  for  it  is  expressly  forbidden  by  the 
Constitution  of  the  United  States.  They  can,  with  the  consent 
of  Congress,  agree  among  themselves  to  estabHsh  similar  con- 
ventions, and  they  can,  without  that  consent,  change,  each  for 
itself,  their  laws  so  as  to  bring  them  into  closer  accord  on  these 
subjects  or  on  any  other.     They  have  been  doing  this  during  the 


176     CONGRESS   OF   LAWYERS   AND   JURISTS 

last  dozen  years  through  the  annual  conference  of  commis- 
sioners on  uniform  State  legislation,  in  which  most  of  our  States 
and  territories  are  now  represented,  and  which  gave  encourage- 
ment, as  has  been  stated  by  Professor  Asser,  to  the  Government 
of  the  Netherlands  to  call  these  various  conferences  which  have 
been  described  to  us  to-day. 

But  it  is  as  easy  to  repeal  as  to  enact.  There  is,  therefore, 
no  assurance  of  stability  to  the  beginnings  of  uniform  legislation 
which  have  been  made,  at  the  instance  of  these  conferences  or 
of  the  American  Bar  Association,  by  the  several  States.  In 
this  respect  the  powers  of  Europe  occupy  a  position  much  more 
favorable  to  permanence  of  policy.  Each  of  these  Hague  treaties 
or  conventions  must,  by  its  terms,  remain  in  force  for  five  years, 
and  will  then  be  tacitly  considered  as  renewed  unless  expKcitly 
denounced  and  terminated. 

The  Hague  Convention  has,  as  has  been  stated,  been  already 
recognized  not  only  by  the  executive,  but  by  the  legislative  de- 
partments of  seven  European  states,  and  must  eventually,  to 
have  full  effect,  be  ratified  by  the  legislatures  of  most  of  the 
rest.  This  gives  them  additional  assurance  of  stabiUty,  but 
stability  is  best  guaranteed  by  the  intrinsic  character  of  these 
treaties  themselves  as  they  have  been  described  to  us.  They 
have  not  attempted  too  much.  They  have  not  aimed  at  the 
establishment  of  uniform  laws  in  respect  to  the  family,  but  uni- 
form rules  for  applying  the  family  law  of  particular  states — 
not,  for  instance,  that  marriage  shall  be  celebrated  in  accordance 
with  the  laws  of  any  one  state  at  all  times,  but  that  marriage 
between  those  who  are  citizens  of  a  certain  state  may  be  cele- 
brated in  accordance  with  the  laws  of  that  state,  wherever  that 
celebration  may  occur. 

The  design  of  The  Hague  treaties,  then,  is  simply  to  prevent 
a  conflict  between  the  laws  of  one  country  and  those  of  others 
on  the  same  subject  by  determining,  in  advance,  by  means  of 
general  regulations,  which  shall  govern,  if  the  case  turning  on 
them  comes  before  the  courts.  Each  country  may  think  its 
own  laws  the  best,  and  yet  each  may,  without  any  inconsistency, 


PRESIDENT    BREWER  177 

agree  to  let  foreigners  in  certain  cases  be  subject  to  foreign  rules, 
with  which  they  may  be  expected  to  be  more  familiar.  It  is 
this  spirit  of  moderation  to  which  Professor  Meili  has  alluded 
with  such  emphasis,  this  contentment  with  comparatively  slight 
advances  which  is  so  striking  a  feature  of  the  work  of  the  Four 
Hague  Conferences,  and  it  is  this  that  carries  with  it  the  surest 
promise  that  their  results  will  endure.'     [Applause.] 

The  President: 

I  have  received  no  card  from  any  gentleman  indicating  a 
desire  to  speak  upon  this  subject.  I  presume  that  most  of  you 
have  felt,  as  I  have  felt,  more  inclined  to  listen  and  take  in  the 
thoughts  of  these  papers  than  to  express  any  thought  of  your 
own.  I  do  not  propose  to  enter  upon  any  discussion  of  the 
questions  which  they  have  so  well  presented,  but  you  will  pardon 
me  a  single  word :  I  trust  every  member  of  this  Congress  will 
carefully  read  these  papers  when  they  are  published,  for  I  am 
sure  he  will  find  in  them  matter  worthy  of  the  most  serious  con- 
sideration. We  are  making,  in  this  country,  an  effort  to  secure 
uniformity  in  State  legislation  in  respect  to  commercial  matters 
and  the  family  relations,  and  it  is  only  part  of  the  same  thought 
that  the  civilized  nations  shall  be  brought  into  harmony  in  their 
legislation  on  these  important  matters. 

As  a  member  of  the  Supreme  Court  of  the  United  States,  I 
may  say,  looking  back  on  the  questions  that  have  been  before 
us  during  the  last  five  or  ten  years,  that  we  have  had  none  upon 
which  we  have  had  more  earnest  discussions,  or  which  often 
brought  more  perplexity  than  those  affecting  the  vahdity  of 
divorces  in  one  State  of  parties  one  of  the  other  of  whom  resided 
in  some  other  State.  We  have  had  to  upset  decrees  in  cases 
which  have  been  very  trying,  cases  in  which  individuals  who, 
innocently  entering  into  the  marriage  relation  relying  on  decrees, 
which  we  have  been    compelled  to  vacate,    were,    in    effect, 

'  A  partial  bibliography,  prepared  by  Judge  Baldwin,  of  what  has  been 
printed  in  reference  to  The  Hague  Conferences  for  regulating  different  matters 
of  Private  International  Law,  will  be  found  in  the  Appendix.    (See  Appendix  B.) 


178     CONGRESS   OF  LAWYERS  AND   JURISTS 

branded  as  having  violated  the  laws  by  entering  into  bigamous 
relations.  All  these  and  similar  difficulties  may  be  and  will  be 
avoided  when  the  States  and  the  nations  realize  the  importance 
of  getting  into  harmony  in  their  legislation  upon,  not  merely  the 
family  relations,  but  upon  commercial  matters.  I  most  earnestly 
commend  these  able  papers  to  your  thoughtful  consideration. 
The  Committee  of  Nations  is  now  ready  to  make  a  report. 

Mr.  Justice  Nesbitt  (Chairman  of  the  Committee  of 
Nations) : 

Mr.  President  and  Gentlemen  of  the  Congress:  A  number 
of  the  communications  that  have  been  handed  in  to  the  Commit- 
tee have  been  discussed  by  it,  I  may  say,  very  thoroughly.  I 
have  been  asked  by  the  members  of  the  Committee  to  request 
if  any  gentleman  has  any  matter  which  he  desires  to  bring  before 
the  Committee  for  expression  of  its  opinion,  that  he  will,  at  the 
earliest  opportunity,  hand  in  the  request.  We  have  not  had 
before  us,  so  far,  anything  that  may  be  said  to  be  really  of  a 
character  that  would  be  expected  to  be  brought  before  a  Con- 
gress of  Jurists.  The  matters  submitted,  as  you  will  see,  are 
more  of  an  economic  character,  or  those  which  relate  to  matters 
of  general  interest.  There  has  been  nothing  brought  before  us, 
as  yet — if  it  is  expected  that  the  Committee  should  deal  with 
such  matters,  in  the  nature  of  resolutions — affecting  questions 
of  international  law.  Any  question  that  any  member  of  the 
Congress  may  think  ought  to  be  dealt  with  by  the  Committee 
on  important  questions  of  international  law  we  will  be  glad  to 
have  come  before  us,  but  we  have  not  had  any  such  matter 
brought  before  us  yet.  Mr.  Ferdinand  Shack,  of  New 
York,  submitted  the  following  resolution : 

"Resolved,  That  this  Association  hereby  expresses  its  deep 
gratification  at  the  steps  recently  taken  by  the  Inter-Parliamentary 
Union  toward  the  settlement  of  controversies  between  nations  in  the 
same  manner  as  disputes  between  individuals  are  settled,  that  is,  by 
the  judgment  of  courts,  in  accordance  with  recognized  principles  of 
law,  and  this  association  further  records  its  great  satisfaction  at  the 
announcement  by  the  President  of  the  United  States  of  his  intention 


THE    COMMITTEE    OF   NATIONS  179 

to  comply  with  the  request  made  to  him  by  the  Inter-Parliamentary 
Union  that  he  invite  the  nations  to  a  conference." 

We  also  had,  in  the  same  connection,  a  motion  offered  by 
Senor  Don  Emilio  Velasco,  a  Delegate  of  the  Mexican  Gov- 
ernment, in  these  words: 

"The  Universal  Congress  of  Lawyers  and  Jurists,  met  in  St. 
Louis,  Missouri,  has  the  honor  to  address  the  Honorable  President 
of  the  United  States  to  request  him  that  when,  in  his  judgment,  it 
may  be  convenient,  he  will  extend  an  invitation  to  a  Second  Conference 
at  The  Hague  for  the  discussions  of  the  questions  relative  to  arbi- 
tration, and  such  other  questions  of  International  Law  as  it  may  be 
deemed  proper  to  propose." 

There  was  also  a  further  resolution,  in  about  the  same 
language,  but  which  practically  asks  the  Committee  to  recom- 
mend a  resolution  by  this  Congress,  to  be  forwarded  by  the  Sec- 
retary of  the  Congress  to  the  Vice-Presidents  representing  the 
various  nations  at  the  Congress,  and  to  be  by  them  forwarded 
to  the  respective  officers  of  their  governments,  asking  the  Czar 
to  bring  about  a  Second  Conference,  as  he,  the  Czar,  was  the 
mover  of  the  First  Conference. 

I  may  say  a  great  deal  of  discussion  took  place  between  the 
Delegates  on  the  subject,  and  I  am  instructed  to  propose  to  this 
Congress  the  following  resolution  as  the  only  one  upon  which 
there  could  be  a  unanimous  opinion.  It  is  not  desirable,  I 
think,  to  outline  the  various  arguments  that  were  introduced  by 
the  various  Delegates  on  the  Committee,  but  I  may  say  that  the 
only  resolution  that  I  can  bring  before  the  Congress  for  it  to 
act  upon  which  could  have  the  unanimous  voice  of  the  Com- 
mittee is  the  following: 

"Resolved,  That  the  Congress,  sympathizing  with  all  movements 
to  bring  forward  peace  among  nations  by  international  friendly 
agreement,  welcomes  the  announcement  of  the  President  of  the 
United  States  that  he  proposes  to  call  a  new  conference." 

I  therefore  ask  the  President  of  this  Congress  to  put  that  to 
the  members  of  the  Congress  as  the  resolution  which  the  Com- 
mittee has  brought  forth. 


i8o     CONGRESS   OF  LAWYERS   AND   JURISTS 

On  motion  of  Mr.  Shack  of  New  York,  the  report  of 
the  Committee  was  adopted. 

Mr.  Justice  Nesbitt: 

There  was  a  further  motion  by  Mr.  Storey  of  Boston,  Massa- 
chusetts, to  the  effect  that  the  progress  of  international  arbi- 
tration will  be  arrested  if  nations  decline  to  arbitrate  their  con- 
troversies with  one  another,  especially  the  larger  nations.  That 
was  debated  very  fully,  and  I  am  requested  to  state  that  the 
majority  of  the  Committee  were  not  in  favor  of  the  adoption 
of  this  resolution,  considering  it  was  already  covered  by  the  one 
that  has  just  been  adopted  by  you;  so  that  I  move,  Mr.  Presi- 
dent, that  the  resolution  of  Mr.  Storey  be  not  adopted. 

The  motion  was  seconded,  and  being  put  by  the  Presi- 
dent, was  declared  to  have  been  carried. 

Mr.  Justice  Nesbitt: 

The  Committee  also  presents  the  following,  from  Hon.  G. 
A.  FiNKELNBURG  of  St.  Louis,  a  Delegate  from  the  United 
States  Government: 

"The  undersigned  begs  leave  to  move  the  adoption  of  the  fol- 
lowing resolution: 

"Whereas,  The  following  modification  of  the  laws  of  maritime 
warfare  was  submitted  to  The  Hague  Peace  Conference,  viz: 

" '  The  private  property  of  all  citizens  or  subjects  of  the  signatory 
Powers,  with  the  exception  of  contraband  of  war,  shall  be  exempt 
from  capture  or  seizure  on  the  high  seas  or  elsewhere  by  the  armed 
vessels  or  by  the  mihtary  forces  of  any  of  the  said  signatory  Powers. 
But  nothing  herein  contained  shall  extend  exemption  from  seizure  to 
vessels  and  their  cargoes  which  may  attempt  to  enter  a  port  blockaded 
by  the  naval  forces  of  any  of  the  said  Powers.' 

"  And  whereas  said  Conference,  not  deeming  itself  authorized  to 
act  on  this  subject,  recommended  the  calling  of  a  special  conference 
to  consider  the  subject;  now,  therefore, 

"Be  it  Resolved,  That  this  Congress  of  Lawyers  and  Jurists 
expresses  the  hope  that  the  principle  expressed  in  the  above  proposi- 
tion may  be  incorporated  into  international  law." 

I  may  say  I  asked  Mr.  Finkelnburg  whether  by  that  it  is 
intended  to  imply  that  the  private  property  of  enemies  should  not 


RESOLUTION    OF   DR.    FERNANDEZ  i8i 

be  interfered  with,  and  he  said  that  was  the  idea.  That  matter 
has  been  thoroughly  discussed  before  the  Hague  Conference, 
and  has  been  a  matter  of  a  great  deal  of  discussion,  pro  and  con, 
by  Continental  lawyers.  I  fancy  that  all  of  you  know  the  argu- 
ments both  ways,  the  argument  against  it  being  that,  as  the  de- 
struction of  the  enemies'  private  property  is  largely  what  people 
go  to  war  for,  to  say  that  you  may  take  the  lives  of  the  enemy, 
but  you  must  not  touch  his  property,  is  to  offer  a  premium  upon 
killing  and  saving  property.  That  is  putting,  in  a  nutshell, 
the  views  of  the  opponents  of  this  theory.  The  Committee, 
after  a  very  full  discussion,  by  a  majority  resolved  that  they 
would  not  take  action  on  this,  as  it  was  already  a  matter  of  dis- 
cussion before  The  Hague  Conference,  and  as  they  considered  it 
was  embraced  in  the  previous  resolution  which  they  had  passed, 
the  resolution  of  sympathy  with  anything  that  tended  towards 
the  promotion  of  peace  in  the  future.  I  therefore  beg  leave  to 
move  that  this  resolution  be  not  adopted,  as,  in  the  opinion  of 
the  majority  of  the  Committee,  it  is  covered  by  the  first  resolu- 
tion. 

The  President: 

I  suggest  also  that  that  question  is  to  be  considered  in  the 
discussion  to-morrow  afternoon. 

Judge  Baldwin: 

Mr.  President,  I  move  that  the  consideration  of  this  report 
be  deferred  until  the  discussion  to-morrow. 

The  President  put  the  motion,  which  v^as  carried. 

Mr.  Justice  Nesbitt: 

We  have  the  following  communication  from  Dr.  Fernandez 
of  the  Argentine  Repubhc : 

"I  beg  to  submit  to  you  for  transmission  to  the  Committee  of 
Nations  five  propositions  which  I  desire  to  bring  before  the  Congress 
for  its  consideration  and  disposition. 

"The  propositions  in  question  I  have  classified  under  the  title  of 


i82      CONGRESS   OF   LAWYERS   AND   JURISTS 

trusts,  socialism,  liberty  in  making  of  wills,  rights  and  duties  between 
parents  and  children,  divorce. 

"  With  each  of  the  foregoing  I  also  submit  a  brief  argument  in  its 
support." 

The  Committee  are  ready  to  report  as  to  certain  of  these. 
The  first  I  beg  to  draw  your  attention  to  is  this: 

"  Resolved,  That  the  Universal  Congress  of  Lawyers  and  Jurists 
recommends  as  more  in  harmony  with  individual  rights,  more  pro- 
pitious to  the  unity  of  the  family,  more  advantageous  to  the  economic 
principles  and  general  progress  of  society,  the  establishing  of  the 
absolute  liberty  to  make  a  will,  aboHshing  the  right  to  contest." 

The  argument  in  support  which  Dr.  Fernandez  desires 
read  before  the  Congress  is  as  follows : 

"The  fundamental  principles  of  this  proposition  are  found  in 
itself.  Their  ample  development  would  require  a  space  of  time 
inadequate  with  the  functions  of  this  Congress.  And  on  the  other 
hand,  the  illustration  of  its  points  in  general  does  not  necessitate 
greater  amphfications.  The  following  will  be  sufficient:  It  is  clear 
that  individual  rights  are  so  much  more  respected  when  the  hmita- 
tions  to  which  they  are  subject  are  the  least.  The  legitimate  relatives 
estabhshed  by  law  being  a  limitation  to  the  individual  right  to 
dispose  of  his  possessions  after  his  death,  it  is  to  all  evident,  such 
limitations  having  disappeared,  individual  rights  are  amplified. 

"The  family  ties  gain  with  the  aboHshing  of  the  legal  aspirants, 
because,  believing  the  uncertainty  of  the  inheritance,  the  natural 
interest  will  fortify  the  natural  sentiment  of  love  toward  the  father, 
the  mother,  the  grandfather,  etc.,  and  the  heart  of  the  old  person 
will  gladden  with  the  nearness  of  the  offspring  of  his  blood  which 
surrounded  him,  without  his  asking  the  reason  why  he  is  thus  sur- 
rounded. 

"Economy  and  progress  gain  from  society  because  the  uncer- 
tainty of  the  inheritance  incites  the  heir-presumptive  to  work; 
whereas  the  security  of  the  inheritance,  more  or  less  near,  encour- 
ages idleness  and  fast  life,  which  is  not  only  unproductive,  but  also 
injurious." 

That,  you  will  all  recognize  as  lawyers,  is  a  matter  that  each 
individual  nation  regulates  for  itself.  Speaking  from  an  English 
and  American  standpoint,  of  course  there  is  the  utmost  liberty 
with  us  of  making  a  will.  Amongst  other  nations,  particularly 
certain  nations  of  the  Continent  of  Europe,  that  right  is  vastly 
restricted.     As  these  are  economic  considerations,  which  are  the 


THE    COMMITTEE    OF    NATIONS  183 

subject  of  much  discussion  in  works  on  international  law,  the 
Committee,  by  a  majority,  thought  it  was  not  wise  for  this 
Congress  to  enter  into  the  discussion  of  them;  and,  therefore,  I 
was  instructed  to  report  to  the  Congress  that,  in  the  opinion  of 
the  Committee,  it  was  not  considered  a  subject  on  which  the 
Congress  should  express  an  opinion,  being  a  matter  of  regulation 
by  each  individual  nation.  Hence,  I  would  move  that  this  reso- 
lution submitted  by  Dr.  Fernandez  be  not  acted  upon  by  this 
Congress  for  the  reasons  I  have  indicated. 

The  President  put  the  motion,  which  was  carried. 

Mr.  Justice  Nesbitt: 

There  are  certain  other  matters  submitted  by  Dr.  Fernan- 
dez, one  relating  to  trusts.  Dr.  Fernandez  suggests  that  they 
be  treated  about  in  the  same  way  as  dealing  with  economics, 
and  the  Committee  has  determined  that  it  is  not  within  the 
functions  of  this  Congress  to  open  up  the  questions  of  trusts, 
as  to  whether  they  are  an  evil  or  a  benefit.  I  dare  say  there 
may  be  many  views  on  that  in  the  audience  that  I  see  before  me, 
and,  therefore,  with  the  consent  of  Dr.  Fernandez,  I  suggest 
that  this  be  acted  upon  in  the  same  way  as  the  other,  as  not 
within  the  purview  of  the  Congress. 

The  President  put  the  motion,  which  was  carried. 

Mr.  Justice  Nesbitt: 

I  may  say  that  you  observed  from  the  reading  of  these  why 
I  ask  that  any  questions  of  law  that  you  desire  the  Congress  to 
pass  upon,  if  there  are  any,  should  be  submitted.  The  Com- 
mittee feels — at  least  the  majority  of  the  Committee  feels — 
that  such  questions  as  I  have  brought  before  your  attention 
this  afternoon  are  not  properly  questions  that  this  Congress 
of  Lawyers  and  Jurists  should  be  asked  to  express  an  opinion 
upon.  They  are  rather  questions  of  economics  and  the  hke, 
which  we  are  not  likely  to  agree  about,  and  which  do  not  come 
within  the  purview  of  this  Congress. 


i84      CONGRESS   OF   LAWYERS   AND    JURISTS 

The  President: 

Some  resolutions  have  been  offered  which  will  be  referred  to 
the  Committee  of  Nations.     The  Secretary  will  read  them. 

The  Secretary: 

As  the  proposed  resolutions  are  rather  lengthy,  I  will  read 
them  merely  by  title.  One  is  a  resolution  offered  by  Mr. 
Walter  S.  Logan  of  New  York,  thanking  the  Exposition 
Company  and  the  various  bar  associations  for  their  hospitality. 
Another  is  a  motion  offered  by  Joseph  R.  Edson  of  Washington, 
D.  C,  in  favor  of  establishing  laboratories  under  governmental 
control  for  the  study  of  the  criminal,  pauper,  and  defective 
classes.  Another  motion  offered  by  Joseph  R.  Edson  of 
Washington,  D.  C,  relates  to  patent  laws. 

The  President: 

They  will  be  referred  to  the  Committee  of  Nations.  I  beg 
leave  to  say  that  to-morrow  morning  I  shall  not  be  here.  The 
fact  of  it  is  that  I  lived  many  years  of  my  life  in  Kansas, 
and  that  is  a  peculiar  state.  It  has  a  day  here  to-morrow,  and 
as  I  feel  as  though  I  ought  to  give  a  httle  time  to  the  celebration 
of  that  day,  I  have  asked  my  friend  Judge  Baldv^^in  to  preside 
to-morrow  morning  and  my  friend  Mr.  Justice  Kennedy  to 
preside  to-morrow  afternoon. 

The  Committee  of  Nations  will  meet  on  this  platform 
to-morrow  morning  at  9  o'clock. 

If  there  is  nothing  else  to  be  brought  up  this  afternoon,  this 
Congress  will  stand  adjourned  until  to-morrow  morning  at 
10  o'clock. 


THE    DELEGATE    FROM    BRAZIL  185 


THIRD    DAY 

Friday,  September  30,  1904 
MORNING   SESSION 

The  Acting  President  (Judge  Baldwin,  Vice-Presi- 
dent for  the  United  States) : 

The  morning  session  of  the  Congress  is  now  open.  Does 
any  Delegate  call  for  the  reading  of  the  minutes  of  the  last 
meeting?  If  not,  the  reading  of  the  minutes  will  be  deemed 
waived.  The  Chair  hearing  no  call,  the  reading  of  the  minutes 
is  waived. 

The  next  regular  order  on  the  programme  is  the  roll-call  of 
Delegates  who  have  registered  since  the  last  roll-call.  Is  there 
any  call  for  the  reading  of  those  names?  If  not,  that  will  be 
deemed  waived.  The  Chair  hears  no  call  and  that  is  waived.  I 
understand  that  in  the  case  of  one  of  these  Delegates  who  has 
registered  since  the  last  roll-call,  the  Chairman  of  the  Exposition 
Committee  on  Congress  has  a  motion  which  he  desires  to  submit. 

Mr.  Lehmann: 

Mr.  President :  Mr.  Lopez  Gon(;alves  has  been  accredited 
as  the  representative  of  the  Government  of  Brazil  to  this  Con- 
gress, and  I  move  you,  sir,  that  he  be  elected  a  Vice-President 
and  a  member  of  the  Committee  of  Nations. 

The  motion  was  duly  seconded,  and  being  put,  Mr. 
Gon(;alves  v^as  thereupon  declared  chosen  a  Vice-Presi- 
dent and  member  of  the  Committee  of  Nations. 

The  Acting  President: 

The  next  business  before  us  is  the  reading  of  the  formal 
paper  for  the  morning.  There  are  many  here  who  had  the 
pleasure,  five  years  ago,  of  hearing  the  distinguished  jurist  who 
is  to  address  us,  when  he  presided  over  the  Conference  of  the 
International  Law  Association  held  at  Buffalo  in  that  year, 


i86     CONGRESS   OF   LAWYERS  AND   JURISTS 

the  year  of  the  Buffalo  Exposition.  They  will  be  very  glad  to 
welcome  him  again,  and  we  shall  all,  1  am  sure,  be  glad  to  hear 
from  Sir  William  R.  Kennedy,  a  Justice  of  the  High  Court  of 
England,  on  the  question,  "To  What  Extent  Should  Judicial 
Action  by  Courts  of  a  Foreign  Nation  be  Recognized?"  I 
have  the  honor  of  presenting  to  you  Mr.  Justice  Kennedy. 


To  What  Extent  Should  Judicial  Action  by  Courts 
OF  A  Foreign  Nation  be  Recognized? 

(Considered  with  especial  reference  to  the  status  of 
individuals  as  affected  by  divorce  or  other  decrees,  and 
the  right  to  represent  the  person  or  property  of  another.) 

A  PAPER  BY 

The  Honorable  Sir  William  R.  Kennedy,  one  of  the 
Judges  of  the  High  Court  of  Justice  of  England,  a  Dele- 
gate from  the  International  Law  Association: 

"Would  not  an  international  union  for  the  execution  of 
foreign  judgments,"  asks  M.  Charles  Constant,  "practically 
be  the  last  word  of  the  science  of  the  Law  of  Nations,  crowning, 
so  to  speak,  the  efforts  of  jurists  towards  the  attainment  of  the 
unity  of  judicial  principles  ? '"  Without  placing  such  a  union  on 
quite  so  high  a  pedestal,  one  may,  I  think,  fairly  claim  that  the 
subject  upon  which  I  have  had  the  honor  of  being  invited  to 
speak  is  one  of  very  real  importance  to  the  family  of  civilized 
nations.  Let  me  hope  that  the  difficulty  and  the  virtue  of  the 
theme  will  breed  in  your  minds  a  kindly  tolerance  for  the 
imperfections  of  its  treatment.  You  will  remember  that  my 
judicial  duty  is  a  jealous  mistress,  and  also  that  mere  regard 
for  your  patience  must  compel  me  to  pass  by  some  points 
altogether,  and  give  brief  notice  to  others,  on  which  otherwise  I 
should  have  felt  myself  bound  to  dwell. 

'  Introduction  to  his  work,  "De  Vexecution  des  jugements  elrangers."  Paris, 
1890. 


PAPER    OF    MR.    JUSTICE    KENNEDY  187 


The  complete  unification  of  laws  is  as  far  beyond  the  range 
of  practical  possibility  as  the  universal  adoption  of  a  common 
language,  or  a  poet's  dream  of  the  "Parhament  of  man,  the 
federation  of  the  world."  There  are  not  wanting,  however, 
signs  of  augury  that  in  respect,  at  any  rate,  of  laws  and  state 
regulations  which  affect  mercantile  and  maritime  interests, 
an  advance  towards  practical  unification  in  particular  directions, 
such  as  the  law  relating  to  collisions  at  sea  and  marine  insurance, 
may  be  made  ere  long,  and  thus  some  visible  fruit  reward  the 
good  work  of  the  International  Law  Association  and  its  fellow- 
laborers  in  the  same  field. 

Indeed,  when  one  considers  the  wonderful  increase  during 
the  last  sixty  years  both  in  the  wish  and  in  the  effort  of  civilized 
mankind  for  a  better  understanding  between  its  component 
parts,  it  seems  rather  strange  that  in  the  sphere  of  private 
international  law  more  has  not  been  accomplished  towards 
evolving  order  out  of  chaos.  Steam  and  electricity  and  the 
power  of  the  press  have,  as  it  were,  drawn  together  the  ends 
of  the  earth.  Swift  intercommunication,  the  facility  of  fre- 
quent personal  intercourse,  and  the  ceaseless  interweaving 
everywhere  of  the  diverse  and  tenacious  threads  of  commercial 
enterprise,  have  taught  the  workers  of  the  Western  World  not 
merely  the  error  of  much  of  their  old  unreasoning  and  indis- 
criminating  mistrust  of  all  foreign  institutions,  but  its  costhness. 
They  have  come  to  see  the  gain,  both  direct  and  indirect,  moral 
and  material,  which  would  ensue  if  the  machinery  of  those 
foreign  institutions  and  of  their  own  could  be  brought  into 
smoother  and  more  harmonious  co-operation. 

In  these  circumstances,  it  is  only  natural  that  now  for  many 
years  the  matter  of  the  execution  of  foreign  judgments  should 
have  been  more  and  more  discussed  alike  by  men  of  business  and 
by  students  and  professors  of  private  international  law.  Nor 
only  by  them;  for  the  question  of  the  recognition  by  the  state 
of  foreign  judicial  acts  is  of  great  general  concern  to  its  subjects. 
I  may  I  think  properly  pause  here  to  notice,  in  passing,  that 
some  part  at  least  of  the  difficulties  which,  in  spite  of   many 


i88     CONGRESS   OF   LAWYERS   AND   JURISTS 

favorable  influences,  retard  a  universal  recognition  of  foreign 
judicial  proceedings  (especially  in  regard  to  questions  of  mar- 
riage and  divorce)  has  arisen  during  the  last  century  from  the 
introduction  into  European  politics,  as  Mr.  Westlake  puts  it, 
of  a  new  factor,  nationality,  and  from  the  tendency  of  Con- 
tinental states,  and  especially  of  France  and  Italy,  to  refer 
to  nationality,  and  not,  as  most  jurists  formerly  did,  and  as 
most  English  lawyers  at  all  events  still  do,  to  domicile,  the 
determination  of  the  personal  law  and  jurisdiction.  The 
intrusion  of  a  new  criterion  has  added  to  compHcations  which 
were  already  sufficiently  perplexing,  but  it  has  found  consider- 
able support. 

In  what  spirit,  then,  should  this  question  of  the  treatment  of 
foreign  judgments  be  approached?  In  the  spirit,  I  submit,  of 
the  utmost  possible  liberality.  There  is  nothing  either  profitable 
or  patriotic  in  national  pharisaism,  nor  would  it  stand  upon  any 
solid  ground.  The  more  one  studies  the  matter,  the  more 
satisfied  one  becomes  that  there  are  few  canons  in  the  domain 
of  international  jurisprudence  for  which  the  distinctive  title 
of  orthodoxy  can  confidently  be  claimed.  On  points  of  impor- 
tance, after  consulting  the  authorities,  professional  and  judicial, 
one  can  sometimes  only  sigh — "Qwo/  doctor es,  tot  sententiae." 
Each  member  of  the  family  of  states,  mindful  of  the  degree  in 
which  equahty  of  civihzation,  identity  of  moral  standard,  and 
community  of  ideas  as  to  legahty  exist  throughout  Western 
Christendom,  should  generally  presume  that  right  has  been  done 
in  the  judicial  proceedings  of  a  sister  state.  Let  us  be  ready  to 
admit  that  in  regard  to  the  application  of  legal  principles  there 
may  be,  not  infrequently,  alike  in  point  of  abstract  reasoning 
and  in  point  of  practical  advantage,  something  to  justify  a 
foreign  practice  which  is  not  our  practice.  Provided  always  that 
the  litigant  parties  have  been  judged  by  a  foreign  tribunal  of 
competent  international  jurisdiction,  the  fact  that  a  legal 
principle  has  there  been  apphed  to  which  we  should  have  pre- 
ferred another  (as,  e.  g.,  the  lex  loci  contractus  and  not  the  lex 
loci  solutionis)  ought  generally,  and  in  regard  to  what  may  be 


PAPER   OF   MR.   JUSTICE    KENNEDY  189 

called  ordinary  matters  of  litigation,  to  be  regarded  as  of  slight 
concern  in  comparison  with  the  establishment  of  the  principle 
that  a  judgment  anywhere  is  a  judgment  everywhere.  We  in 
England  and  in  America,  the  fortunate  inheritors  of  the  com- 
mon law,  may  be  greatly  right  in  preferring  our  system  of  law 
and  of  legal  administration  to  the  system  which,  under  some- 
what varying  forms,  dominates  Continental  Europe.  I  have  no 
doubt  that  there  is  a  reciprocity  of  feeling  on  the  other  side. 
But  nowadays,  so  universal  is  the  respect  and  desire  for  justice, 
so  rarely  is  its  administration  impure,  and  so  great  the  gain  of 
the  extraterritorial  recognition  of  judicial  decrees,  that  the 
appHcation  of  the  comitas  gentium,  from  which  such  recognition 
proceeds,  may,  I  hope,  safely  receive  extension.  I  am  glad  to 
beheve,  judging  from  the  past,  that  my  own  country  will  not 
stand  back  in  this  matter.  "No  countr}',"  wrote  Sir  Robert 
Phillimore  in  his  great  work  on  International  Law  (3d  ed. 
Vol.  IV.,  p.  764),  "has  been  more  Hberal  than  England  in  gi\ang 
effect  to  the  decisions  of  foreign  courts.  This  will  be  found 
the  just  conclusion  from  the  decisions  which  have  taken  place  in 
the  British  courts,  from  the  time  of  the  decision  of  Weir's 
case  in  the  reign  of  James  I.  to  the  decisions  in  Vallee  v.  Du- 
mergue  in  the  English  Court  of  Exchequer  in  the  year  1849, 
and  Barber  v.  Lamb  in  the  Court  of  Common  Pleas  in  i860, 
and  since."  The  same  praise  has  been  bestowed  by  Chief 
Justice  Marshall  (cited  by  Story,  Conflict  of  Laws,  590) 
in  his  judgment  in  Rose  v.  Hinsley  (4  Cranch,  p.  270)  where  he 
speaks  of  the  decisions  of  the  courts  of  England  as  giving,  in 
his  belief,  to  foreign  sentences,  as  full  effect  as  is  given  to  them 
in  any  part  of  the  civilized  world.  A  hke  encomium  would, 
I  doubt  not,  be  found  due  to  the  United  States  and,  in  Europe, 
pre-eminently  to  Italy.  A  general  principle  upon  which  all 
states  ought  to  proceed  in  the  treatment  of  foreign  judgments 
has  been  enunciated  by  Vattel  and  approved  by  Story.  {Con- 
flict of  Laws,  §585.)  It  is  the  province  of  every  sovereignty  to 
administer  justice  in  all  places  within  its  own  territory  and  under 
its  own  jurisdiction,  and  to  take  cognizance  of  the  controversies 


I90     CONGRESS   OF  LAWYERS  AND   JURISTS 

which  arise  within  it.  Other  nations  ought  to  respect  this 
right;  and  as  the  administration  of  justice  necessarily  requires 
that  every  definitive  sentence  regularly  pronounced  be  esteemed 
just,  and  executed  as  such,  when  once  a  cause  in  which  for- 
eigners are  interested  has  been  decided  in  form,  the  sovereign 
of  the  defendants  ought  not  to  hear  their  complaints.  The 
decision  made  by  the  judge  of  the  place,  within  the  extent  of  his 
authority,  ought  to  be  respected  and  to  take  effect  even  in 
foreign  countries. 

If  we  accept  this  general  principle,  we  must,  at  the  same 
time,  admit  that  at  present  it  cannot  be  apphed  to  every  class  of 
case,  and  cannot  be  applied  to  any  without  some  reservation; 
and,  further,  that  as  to  the  proper  conditions  and  limitations, 
great  difference  of  opinion  exists.  The  question  is,  how  far 
might  national  action  properly  go  in  the  direction  of  recognition  ? 

And  here,  by  way  of  preface  to  the  more  particular  examina- 
tion of  this  question,  I  desire  to  make  two  observations  of  a 
general  nature.  First,  we  must  carefully  keep  in  view  the 
basis  of  the  jurisdiction  of  courts  of  justice  in  all  countries. 
Nowhere,  as  far  as  I  am  aware,  has  that  basis  been  better  or 
more  concisely  set  forth  than  in  the  judgment  of  the  Privy 
Council  delivered  by  Lord  Selborne  in  the  case  of  Sirdar 
Singh  V.  Faridkole  (1894  A.  C.  670):  "All  jurisdiction  is  prop- 
erly territorial,  and  ^  extra  territorium  jus  dicenta  inipune  -non 
parelur.'  Territorial  jurisdiction  attaches  (with  special  excep- 
tions) upon  all  persons,  either  permanently  or  temporarily 
resident  within  the  territory,  while  they  are  within  it,  but  it 
does  not  follow  them  after  they  have  withdrawn  from  it,  and 
when  they  are  hving  in  another  independent  country.  It 
exists  always  as  to  land  within  the  territory,  and  it  may  be 
exercised  over  movables  within  the  territory;  and  in  questions 
of  status  or  succession  governed  by  domicile,  it  may  exist  as 
to  persons  domiciled,  or  who,  when  living,  were  domiciled, 
within  the  territory.  As  between  provinces  under  one  sov- 
ereignty, the  legislation  of  the  sovereign  may  distribute  and 
regulate  jurisdiction;    but   no   territorial   legislation   can   give 


PAPER   OF   MR.    JUSTICE   KENNEDY  191 

jurisdiction  which  any  foreign  court  ought  to  recognize  against 
foreigners  who  owe  no  allegiance  or  obedience  to  the  power 
which  legislates."  Secondly,  it  is  clear,  I  think,  that  special 
considerations  arise  according  to  the  nature  of  the  subjects  to 
which  the  judicial  action  in  the  foreign  country  relates.  A 
judgment  m  personam  which  settles  a  claim  of  debt  or  for 
damages  in  contract  or  in  tort;  a  judgment  in  rem,  which 
makes  a  disposition  of  movable  property  by  vesting  the  property 
in  some  person  or  persons  as  against  all  the  world  or  by  decree- 
ing a  sale  of  it  in  satisfaction  of  a  money  demand  which  it  has 
adjudged  to  have  constituted  a  hen  on  the  property  itself;  and 
a  judgment  estabhshing  or  affecting  the  status  such  as  one 
which  declares  the  legitimacy  of  a  child  or  grants  a  divorce — 
are  not  susceptible  of  identical  treatment.  And  in  considering 
the  effect  which  ought  to  be  given  to  a  judicial  declaration  of 
bankruptcy,  by  a  foreign  court,  one  has  carefully  to  keep  in 
view  the  difficult  duty  of  providing  for  the  equitable  adjustment 
inter  se  of  the  claims  of  creditors  whose  rights  against  the  bank- 
rupt may  have  arisen  under  different  jurisdictions,  and  subject 
to  different  laws  in  respect  of  the  legal  incidents  which  attach 
to  their  contractual  relations  with  him. 

Let  us  consider  first  the  recognition  of  foreign  judgments 
in  personam.  On  what  conditions  and  under  what  limitations 
should  they  be  enforceable?  Be  it  understood  that  when  I  use 
the  word  "enforceable,"  I  do  not  refer  to  a  particular  method 
of  enforcing  them.  I  intend  to  include  ahke  that  which  is  the 
Enghsh  and  American  method  of  procedure,  i.  e.,  by  an  ordinary 
action  in  which  the  claim  is  based  upon  the  foreign  judgment; 
and  the  method  of  procedure  as  I  understand  it  to  exist  in 
Italy,  where  effect  is  given  to  claims  under  foreign  judgments 
by  an  extraordinary  procedure — '^instance  en delibation  (giudizio 
di  delibazione)''  whereunder  a  ''tribunal  d' exequatur''  after 
examination  of  the  foreign  judgment  on  certain  specified  points 
rejects  or  adopts  it,  and,  if  it  adopts  the  judgment,  admits  it, 
like  a  domestic  judgment,  to  execution  within  the  jurisdiction. 

I  suggest  that  a  foreign  judgment  in  personam  should  be 


192      CONGRESS   OF   LAWYERS   AND    JURISTS 

held  valid,  and,  unless  already  satisfied,  have  the  effect  of  a 
conclusive  determination  given  to  it  and  be  enforceable  in  the 
courts  of  any  state  as  against  the  unsuccessful  party,  and  per- 
sons vi^ho  through  that  party  are  privy  to  it,  provided  that  it 
appears  to  the  court  which  is  asked  to  give  effect  to  it  that  • 

A.  It  has  been  pronounced  by  a  court  of  competent  juris- 
diction. 

B.  It  is  final,  or  as  Continental  jurists  term  it,  executor}^  in 
the  country  in  which  it  was  pronounced. 

C.  It  docs  not  decree  anything  and  does  not  give  effect  to  a 
claim  which  itself  is  contrary  to  the  pubhc  policy  or  to  the 
law  of  the  country  in  which  it  is  sought  to  enforce  it. 

Provided,  always,  that  the  tribunal  before  which  the  question 
of  the  enforcement  is  raised  should  treat  the  judgment  as 
invalid  if  it  is  shown  to  have  been  obtained  by  fraud. 

I  hope  that,  to  some  extent  at  least,  these  suggestions,  which 
represent,  in  my  opinion,  the  irreducible  minimum  of  condi- 
tions, explain  themselves.  I  feel,  however,  that  I  ought  to  add 
a  few  words;  chiefly,  and  in  the  first  place,  as  to  what  might 
otherwise  be  deemed  unintentional  omissions. 

Ought  proof  also  to  be  required  by  the  court  from  which  en- 
forcement is  sought  that  the  parties  were  duly  cited,  and,  if  it 
was  a  judgment  by  default,  that  the  party  against  whom  it  was 
pronounced  had  been  made  aware  of  the  action  and  had  the 
opportunity  of  defending  himself? 

I  have  not  suggested  such  a  condition,  because,  in  the  first 
place,  so  far  as  regards  the  due  observance  by  the  foreign  court 
of  its  own  prescribed  procedure,  we  might  apply,  I  am  inclined 
to  think,  the  maxim,  "Omnia  presumuntur  rite  esse  acta,^^  and 
not  allow  the  contrary  to  be  alleged  except  as  an  element  in  a 
defense  of  fraud  in  the  obtaining  of  the  judgment;  and  in  the 
second  place,  because  the  only  objections  on  the  plea  that  the 
prescribed  procedure  was  itself  improper  (or,  as  the  point  has 
sometimes  been  put,  "inconsistent  with  natural  justice")?  which 
ought,  in  my  humble  judgment,  to  be  entertained  will  be  found, 
I  think,  really  to  be  objections  to  the  international  competence 


PAPER    OF    MR.    JUSTICE    KENNEDY  193 

of  the  tribunal.  It  is  beyond  controversy  that,  in  the  absence 
of  an  international  agreement  as  to  rules  of  competence,  it  is 
right  and  also  consistent  with  the  comity  of  nations  that  the 
court  which  is  asked  to  give  effect  to  a  foreign  judgment,  should 
satisfy  itself  that  the  tribunal  which  gave  the  judgment  belonged 
to  a  country  whose  sovereign,  in  the  language  of  Mr.  Dicey 
{Conflict  0}  Laws,  pp.  35,  36),  might,  in  accordance  with  the 
principles  maintained  by  the  court  which  is  asked  to  enforce 
the  judgment,  rightly  adjudicate  upon  the  matter  in  which  the 
judgment  was  given.  It  is,  I  am  afraid,  equally  beyond  con- 
troversy that  the  principles  which  are  maintained  by  courts  of 
law  as  to  international  competence  of  jurisdiction  are  not  every- 
where the  same.  I  believe  that  an  American  court  would  con- 
cur with  the  judges  of  our  courts'  in  the  opinion  that  it  will  not  be 
right  to  treat  as  internationally  competent  a  forum  actoris,  such, 
e.  g.,  as  has  been  created  in  France  by  Article  14  of  the  Code 
Napoleon;  whereby,  as  Mr.  Westlake  has  put  the  matter,  a 
Frenchman,  as  against  a  non-resident  foreigner,  has  been  given 
a  jurisdiction  neither  personal  to  the  defendant  nor  connected 
with  the  obhgation,  but  personal  to  the  plaintiff.  The  same 
would  be  true,  I  suppose,  as  to  the  claim  advanced  by  the  courts 
of  some  communities,  and  especially  of  Scotland,  to  ground 
jurisdiction  in  an  action  in  personam  on  the  mere  fact  of  the  pos- 
session by  the  defendant  of  property  lying  within  the  limits  of 
the  country  to  which  the  courts  belong."  Nothing  except  an 
international  convention  can  create  a  uniform  criterion  of  the 
competence  of  the  jurisdiction  of  the  adjudging  tribunal. 
Assume,  however,  that  in  the  particular  case  no  question  of 
want  of  jurisdiction  can  be  raised,  and  that  the  party  against 
whom  judgment  has  passed  in  the  foreign  country  is  held  by  the 
court  of  the  country  where  enforcement  is  sought  rightly  to 
have  been  treated  by  the  foreign  tribunal,  in  regard  to  the 
claim  against  him,  as  subject  to  the  foreign  jurisdiction,  must 

1  See  Schibsby  v.  Westenholtz,  L.  R.,  6  Q.  B,  155:  Westlake  Private  Inter- 
national Law,  p.  347. 

2  Dicey,  Conflict  of  Laws,  p.  380. 


194     CONGRESS   OF  LAWYERS   AND   JURISTS 

he  not  clearly  be  held  bound  by  the  ordinances  of  the  law  which 
that  foreign  tribunal  administers  in  regard  to  citation,  and  all 
other  matters  of  legal  procedure?  Is  it  altogether  reasonable 
that,  when  sued  abroad  upon  the  judgment  which  has  been 
regularly  obtained  against  him  in  conformity  with  that  law,  he 
should  be  allowed  to  find  a  defense  in  the  opinion  of  the  court 
of  the  country  where  he  is  sued,  that  the  law  as  to  procedure  in 
the  country  of  the  judgment  ought  to  have  been  other  than  it  is? 
Look  at  the  matter  from  another  point  of  view.  There  is  no 
recognized  standard  of  morahty  of  natural  justice  in  regard  to 
legal  procedure;  we  are  deahng  with  acts,  not  of  barbarous  or 
of  uncivilized,  but  of  equally  civilized,  nations.  If  we  agree 
that  it  is  desirable  that  foreign  judgments  in  personam  should 
be  recognized,  ought  we  not  to  assume,  not  merely  that  the  rules 
of  legal  procedure  prescribed  by  the  laws  of  the  adjudging  state 
have  been  duly  observed  by  its  court  before  judgment  has  been 
pronounced,  but  also  that  these  rules  themselves,  although  not, 
perhaps,  in  accordance  with  our  own  notions,  do  not  constitute  a 
violation  of  morality  or  natural  justice? 

As  to  my  inclusion  amongst  the  conditions  of  a  permission 
to  a  party  sued  on  a  foreign  judgment  to  resist  the  claim  on  the 
ground  of  fraud,  let  me  say  that  I  should  have  been  glad  if  I 
could  have  submitted,  for  your  consideration,  some  compro- 
mise between  the  English  law,  which  is,  I  believe,  the  law  also 
maintained  in  the  United  States,  and  the  opposing  view  enter- 
tained, as  I  know,  in  the  legal  world  upon  the  Continent  of 
Europe.  It  is  settled  law  with  us  that  the  defendant  may 
show  that  the  foreign  judgment  was  obtained  by  fraud,  and,  if 
it  be  necessary  for  that  purpose,  may  have  questions  retried 
which  were  adjudicated  upon  by  the  foreign  court.  The  Con- 
tinental jurist  objects  to  this.  He  contends,  as  M.  Octave 
Marais,  a  distinguished  French  lawyer,  put  the  point  at  the 
Rouen  Conference  of  the  International  Law  Association  in 
1890,  ^'celte  question  devrait  etre  agitee  devant  le  juge  du  pays  qui 
a  rendu  le  jugement."  It  was  suggested  at  the  same  conference, 
by  Mr.  Foote,  a  well-known  authority  on  international  law, 


PAPER    OF    MR.    JUSTICE    KENNEDY  195 

in  his  draft  Foreign  Judgments  Convention,  that  besides  alleging 
and  proving  that  the  judgment  was  obtained  by  fraud,  the 
party  sued  must,  in  order  to  make  out  a  complete  defense, 
further  show  that  he  had  no  means  or  opportunity  of  setting 
aside  the  judgment,  or  obtaining  other  sufficient  rehef,  on  such 
ground,  in  the  country  of  the  judgment. 

There  is,  I  think,  so  much  that  may  fairly  be  urged,  at  all 
events  in  support  of  the  Continental  opinion,  that  the  defend- 
ant should  be  left  to  apply  to  the  tribunal  which  gave  the  judg- 
ment against  him  for  an  amendment  or  reversal  of  it,  that  I  am 
inclined  to  think  that  the  compromise  of  the  contending  views, 
on  the  lines  suggested  by  Mr.  Foote,  should  receive  careful 
consideration,  if  a  convention  between  states  could  be  arranged, 
which  should  also  settle  and  codify  rules  as  to  competence  of 
jurisdiction.  Without  such  a  convention,  and  except  as  part 
of  such  a  convention,  I  could  not,  myself,  adopt  any  modifica- 
tion of  the  English  position.  I  feel  too  strongly  the  goodness 
of  the  point  put  at  the  same  conference  by  Mr.  Cephas  Brain- 
ERD  of  New  York:  "Where  I  serve  a  process  upon  a  person 
passing  through  the  State  of  New  York,  a  Frenchman,  if  you 
please,  which  is  the  most  helpless  case,  and  I  obtain  final  judg- 
ment by  fraudulent  conduct,  he  ought  not  to  be  called  upon  to 
come  from  France  to  the  State  of  New  York  to  Htigate  the  ques- 
tion of  fraud,  but  he  ought  to  have  the  option  and  right  to  wait 
until  I  attempt  to  enforce  the  fraudulent  judgment  against  him 
in  the  country  of  his  residence,  namely,  in  France;  and  then  he 
ought  to  have  the  opportunity  to  test  the  question  whether  he 
had  been  honestly  or  fraudulently  treated  in  the  courts  of  my 
State." 

So  far  I  have  been  dealing  with  a  foreign  judgment  in 
personam  as  a  judgment  which  the  successful  party  is  seeking 
actively  to  enforce.  But  the  judgment  may  have  been  in  favor 
of  the  defendant.  If  it  was,  and  the  plaintiff  afterwards  pro- 
ceeds against  the  defendant  elsewhere  upon  the  same  cause  of 
action,  the  foreign  judgment  should  be  recognized,  as  it  is  rec- 
ognized in  England,  as  affording  the  defendant  a  conclusive 


196     CONGRESS   OF   Lx^WYERS   AND   JURISTS 

answer  to  the  claim.  In  the  language  of  Eyre,  C.  J.,  in  Phil- 
lips V.  Hun/er,  "It  is  in  one  way  only  that  the  sentence  of  judg- 
ment of  a  foreign  court  is  examinable  here,  that  is,  when  the 
party  who  claims  the  benefit  of  it  applies  to  our  courts  to  enforce 
it,  and  thus  voluntarily  submits  it  to  our  jurisdiction.  In  all 
other  cases,  we  give  entire  faith  and  credit  to  the  sentences  of 
foreign  courts,  and  consider  them  conclusive  upon  us."  And 
so  Story  (Conflict  0}  Laws,  §598):  "It  is  res  judicata,  which 
ought  to  be  received  as  conclusive  evidence  of  right,  and  the 
exceptio  rei  judicatae,  under  such  circumstances,  is  entitled  to 
universal  conclusiveness  and  respect."  Clearly  the  plaintiff, 
who  has  himself  invoked  the  action  of  the  foreign  court,  must 
not  be  allowed  to  impeach  its  jurisdiction.  At  the  same  time 
I  would  venture,  although  it  is  generally  held  otherwise,  to 
suggest  that,  if  a  defendant  in  proceedings  against  him  on  a 
foreign  judgment,  may  defeat  the  claim  by  proving  that  the 
judgment  was  obtained  by  fraud,  it  would  be  equitable  that  if 
the  plaintiff  is  met  by  the  exceptio  rei  judicatae,  he  should  be 
allowed  a  reply  upon  the  same  ground  of  fraud.  Subject  to 
this,  and  upon  the  assumption  that  the  foreign  judgment  appears 
or  is  shown  to  have  been  a  judgment  on  the  merits,  and  not 
founded  on  a  statute  of  limitations  peculiar  to  the  lex  fori,  and 
upon  the  assumption  also  that  the  claim  in  the  actions  in  the  two 
courts  and  the  character  in  which  the  plaintiff  has  sued  in  both 
are  the  same,  the  foreign  judgment  should  be  recognized  by 
the  court  in  which  the  second  action  is  brought  as  a  conclusive 
answer  to  the  plaintiff  's  demand. 

Before  passing  on  to  the  consideration  of  judgment  in  rem, 
I  think  it  may  be  useful  to  some  who  are  here  and  are  inter- 
ested in  the  question  of  the  enforcement  of  foreign  judgments  in 
personam,  if  I  call  to  their  notice  the  very  valuable  papers,  dis- 
cussions, and  draft  conventions  which  they  will  find  in  the  Re- 
ports of  the  Conferences  of  the  International  Law  Association, 
held  at  Milan  in  1883,  at  Brussels  in  1885,  at  Rouen  in  1900, 
and  at  Antwerp  in  1903.     Esi)ecially  interesting  is  the  report 

>  2  H.  BI.  402. 


PAPER    OF   MR.   JUSTICE   KENNEDY  197 

which  was  presented  to  the  last  named  Conference  by  M. 
Gaston  de  Laval  of  Brussels,  Counsel  to  the  British  Legation 
there.  It  contains  a  draft  projet  de  convention  between  Great 
Britain  and  Belgium,  which  is  prefaced  by  noteworthy  comments 
of  the  author  upon  the  subject  of  the  execution  of  foreign  judg- 
ments, and  the  possibility  of  such  an  international  convention. 
He  calls  attention  to  a  difficulty  of  a  minor,  but  still  troublesome 
kind,  which  might  be  easily  overlooked,  but  which,  according 
to  the  author,  unless  it  were  removed  by  the  convention,  would 
raise  an  obstacle  to  the  execution  of  some  Enghsh  judgments  in 
Belgium.  By  the  Belgium  Constitution,  Art.  97,  ''Tout  juge- 
ment  est  motive.  II  est  prononce  en  audience  publique.''^  If  a 
Belgian  court  gave  effect  to  a  foreign  judgment  which  did  not 
set  forth  in  writing  the  grounds  on  which  it  is  founded,  and  was 
not  also  pronounced  in  public,  there  would  result,  in  the  view 
of  M.  DE  Laval,  a  violation  of  the  Belgian  Constitution.  A 
judgment  given  by  a  judge  in  chambers,  or  pronounced  in 
court  upon  the  general  verdict  of  a  jury,  without  special  find- 
ings, as  is  usual  in  the  case  of  ordinary  money  claims,  would  not 
satisfy  these  conditions.  We  are  apt  to  forget  that  trial  by 
jury  in  civil  cases  is  not  an  institution  of  the  procedure  in  France 
and  in  other  parts  of  Continental  Europe. 

A  judgment  in  rem  should  be  held,  as  I  believe  it  is  generally 
treated  now,  to  be  conclusive  everywhere,  provided  always,  that 
it  has  been  pronounced  by  a  court  of  competent  jurisdiction, 
and  is  not  shown  to  have  been  obtained  by  fraud.  By  the  term 
judgment  in  rem,  I  mean  a  judgment  as  defined  by  Cockburn, 
C.  J.,  in  Castrique  v.  Imrie,^  "determining  the  status  of  a  chattel 
with  reference  to  property,  or  vesting  the  property  at  once  in  the 
claimant,  as  a  condemnation  of  the  Court  of  Exchequer  in  a 
revenue  case  vests  the  property  in  the  crown,  or  the  sentence  of 
the  Court  of  Admiralty  in  a  matter  of  prize  vests  the  property 
in  the  captor."  Such  a  judgment  in  regard  to  its  claim  for  rec- 
ognition elsewhere  stands  even  in  a  stronger  position  than  a 
judgment  in  personam.     The  thing  duly  adjudicated  upon  and 

^8  C.  B.  N.  S.,  405. 


198     CONGRESS   OF  LAWYERS   AND   JURISTS 

disposed  of  by  the  judgment,  if  it  be  a  movable,  is  within  the 
jurisdiction  of  the  court.  If  it  is  in  an  analogous  position  to  land, 
or  other  immovable  property,  as  to  which  the  judgment  pro- 
nounced in  the  forum  ret  sitae,  is  held  to  be  of  universal  obligation 
as  to  the  matters  of  right  and  title  which  it  professes  to  decide 
in  relation  thereto.'  According  to  the  law  of  England,  in  the 
language  of  Mr.  Foote,  in  his  work  on  Private  International 
Jurisprudence,  ''In  the  absence  of  fraud,  for  which  a  foreign 
judgment  in  rem  may  be  impeached,  just  as  a  foreign  judgment 
in  personam  may  be  impeached  for  the  same  cause,  the  only 
requisite  necessary  to  the  validity  and  conclusiveness  of  a  for- 
eign judgment  in  rem  is  that  it  should  have  been  pronounced  by 
a  competent  court"  [i.  e.,  a  court  possessing  international  com- 
petence], "having  actual  jurisdiction  over  the  subject  matter." 
It  is  conclusive  in  all  courts,  and  not  only  as  a  judgment  in 
personam  between  the  same  parties  or  privies,  but  against  all 
persons;  and  not  only  in  regard  to  the  fact  or  facts  directly 
adjudicated  upon,  but  in  regard  to  all  facts  upon  which  the 
judgment  of  the  court  is  necessarily  founded.  The  recognition 
which  my  country  accords  to  foreign  judgments  in  rem  should 
be  accorded  to  such  judgments  everywhere. 

I  now  approach  the  questions,  and  very  thorny  questions 
they  are,  which  present  themselves  for  solution,  if  an  attempt  is 
made  to  systematize  the  recognition  of  foreign  judgments  affect- 
ing the  status  of  persons.  Some  of  such  judgments  touch  to  the 
quick  the  most  sacred  and  intimate  relations  of  social  life;  and 
the  claim  for  anything  beyond  territorial  recognition  has  to  fight 
its  way  through  a  jostling  crowd  of  jealous  susceptibilities. 
Foremost,  no  doubt,  in  public  interest,  as  it  is  in  the  title  of 
this  paper,  which  was  chosen  for  me  by  the  conveners  of  the 
Congress,  is  the  question  of  the  recognition  of  the  foreign  judi- 
cial proceedings  which  relate  to  marriage  and  divorce.  "Mar- 
riage," said  Lord  Westbury  in  the  House  of  Lords  in  the  case 
of  Shaw  V.  Gould,  "is  the  very  foundation  of  civil  society." 
True.     True,  also,  that  up  to  a  point  certain  ideas  in  regard  to 

'  Story,  Conflict  oj  Laws,  §590. 


PAPER   OF    MR.   JUSTICE    KENNEDY  199 

the  law  of  marriage  are  common  to  all  parts  of  Christendom. 
"It  is  agreed  that  the  essentials  are  that  the  parties  should  not 
be  within  prohibited  degrees  of  kinship,  that  each  should  have 
sufficient  age,  sufficient  intcUigence,  freedom  of  will,  intention 
to  contract  marriage,  and  to  contract  it  with  a  particular  part- 
ner, and  that  there  should  be  some  overt  act  or  sign  evidencing 
the  marriage."  But,  as  Mr.  Justice  Phillimore,  the  distin- 
guished author  of  this  statement,  proceeds  to  point  out,  we  have 
here  reached  the  limit  of  agreement.  As  to  the  prohibited 
degrees  of  kinship,  as  to  the  age  which  should  constitute  capa- 
city, as  to  the  requirement  of  consent,  or  of  absence  of  dissent, 
on  the  part  of  parent  or  guardian,  exist  divergencies  which  race, 
religion,  and  nationality  have  combined  to  create  and  to  main- 
tain. Radically  different  views  have  been  expressed  by  emi- 
nent judges  and  eminent  jurists  as  to  the  legal  principles  which 
ought,  according  to  international  law,  to  be  applied  in  determin- 
ing the  validity  of  marriages  and  of  divorces.  Is  consent  to 
the  marriage  on  the  part  of  parent  or  guardian  an  essential, 
or  only  a  matter  of  form  and  ceremony?  Is  the  lex  loci  cele- 
brationis to  be  the  criterion  of  the  validity  of  the  marriage  only 
in  matters  of  form  and  ceremony,  or  as  to  essentials  also?  Is 
the  question  of  personal  capacity  or  competence  to  contract  to 
be  determined  by  the  law  of  the  domicile  or  by  the  law  of  na- 
tionality? Ought  the  lex  loci  also  to  be  complied  with  in  these 
respects?  Ought  the  incapacity  of  one  only  of  the  parties  to 
be  held  sufficient  to  justify  a  decree  of  annulment?  And  in 
regard  to  the  dissolution  of  marriage  by  a  sentence  of  divorce, 
what  circumstances  are  necessary  or  sufficient  to  create  com- 
petence in  the  court  of  a  country  which  was  not  the  locus  cele- 
brationis? In  the  face  of  the  apparently  irreconcilable  differ- 
ences in  the  answers  which  competent  lawyers  are  found  to  give 
to  these  vital  questions,  and  of  the  importance  which  all  nations 
attach  to  the  support  of  their  own  marriage  laws,  it  would  be, 
in  my  judgment,  futile  at  the  present  time  to  tr>-  to  formulate 
terms  or  limitations,  subject  to  which  nations  should  agree  to 
recognize  as  conclusive  the  judgments  of  foreign  courts  as  to 


20O     CONGRESS   OF  LAWYERS   AND   JURISTS 

marriage  and  divorce.  We  must  first  reach  a  condition  of 
greater  harmony,  or,  perhaps,  I  ought  to  say,  of  less  discord,  as 
to  the  legal  principles  to  be  applied.  The  prospect  of  improve- 
ment in  this  direction  is  not  good.  The  view  of  Mr.  Westlake 
is  thus  expressed  at  the  close  of  his  well-known  work  on  Private 
International  Law  (page  373).  "A  unity  as  to  marriage  and  di- 
vorce is  as  important  as  any  topic  I  have  mentioned,  but  there 
we  touch  the  point  in  which  modern  civilization  has,  during  three 
centuries,  been  receding  from  unity,  and  perhaps  will  not  rejoin 
it  without  first  passing  through  even  greater  diversity."  In  an 
earlier  part  of  this  paper  I  ventured  to  say  that  in  regard  to 
ordinary  actions  in  personam,  in  contract  or  in  tort,  we  ought  not 
to  hesitate,  if  we  may  thereby  attain  even  to  an  approach 
towards  the  universal  recognition  of  judicial  proceedings  in 
such  actions,  to  incur  the  risk  of  thereby  sanctioning  sometimes, 
in  effect,  by  the  enforcement  of  a  foreign  judgment,  an  adjudi- 
cation which  has  proceeded  on,  or  has  been  affected  by,  the 
application  of  one  principle  of  law  where  our  own  courts  would 
have  preferred  another.  But  marriage  cannot  properly  be 
treated  as  a  contract  and  nothing  more.  "In  truth,"  Sir  James 
Hannen  has  said,  "very  many  and  serious  difficulties  arise  if 
marriage  be  regarded  only  in  the  light  of  a  contract.  It  is  in- 
deed based  upon  the  contract  of  the  parties,  but  it  is  a  status 
arising  out  of  a  contract  to  which  each  country  is  entitled  to 
attach  its  own  conditions,  both  as  to  its  creation  and  duration." 
The  only  suggestions  I  can  offer  for  the  consideration  of  the 
Congress  are  suggestions  of  a  restrictive  character. 

First:  That  a  court  should  be  held  bound  to  recognize  as 
valid  a  foreign  decree  of  nullity  of  marriage  on  the  ground  of 
incapacity  or  prohibition  only  where  the  court  which  pro- 
nounced the  decree  was  a  court  of  the  territory'  wherein  the 
marriage  was  celebrated.  Obviously  it  is  there  that  the  valid- 
ity or  invalidity  of  the  marriage  should  be  investigated.  In 
i860,  in  the  case  of  Simonin  v.  Mallac,  the  Enghsh  court  rightly, 
if  T  may  humbly  say  so,  exercised  jurisdiction  to  inquire  into 
the  validity  of  a  marriage  celebrated  in  England,  and  refused  to 


PAPER    OF   MR.   JUSTICE   KENNEDY  201 

hold  that  it  was  null  and  void,  although  such  a  decree  had  been 
given  in  France,  which  had  always  been  the  country  of  the 
domicile  of  the  parties.' 

Secondly :  A  court  which  is  not  the  court  of  the  country  of 
the  matrimonial  domicile  at  the  time  when  divorce  proceedings 
are  instituted,  should  not  be  recognized  elsewhere  as  a  court 
competent  to  pronounce  a  decree  of  divorce  (judicial  separation 
and  ahmony  stand  on  a  different  footing),  except  in  favor  of  a 
wife  who  has  been  deserted  by  her  husband,  or  whose  husband 
has  so  conducted  himself  that  she  is  justified  in  living  apart 
from  him,  and  who,  up  to  the  time  when  she  was  so  deserted, 
or  began  to  be  so  justified  in  living  apart  from  him,  was  domi- 
ciled with  her  husband  in  that  country.  By  domicile  I  do  not 
mean  mere  residence  or  sojourn;  I  mean,  according  to  the  defi- 
dition  given  by  Sir  Robert  Phillimore,  "residence  at  a  par- 
ticular place,  accompanied  with  positive  or  presumptive  proof 
of  an  intention  to  remain  there  for  an  unlimited  time." 

As  to  the  propriety  and  the  importance  of  this  restriction,  an 
English  judge  (Lord  Penzance),  of  great  eminence  and  of  great 
experience  in  questions  of  marriage  law  has  placed  on  record 
this  weighty  opinion:  "It  is  the  strong  inchnation  of  my  own 
opinion  that  the  only  fair  and  satisfactory  rule  to  adopt  in  this 
matter  of  jurisdiction  is  to  insist  upon  the  parties  in  all  cases 
referring  their  matrimonial  differences  to  the  courts  of  the  coun- 
try in  which  they  are  domiciled.  Different  communities  have 
different  views  and  laws  respecting  matrimonial  obligations, 
and  a  different  estimate  of  the  causes  which  should  justify 
divorce.  It  is  both  just  and  reasonable,  therefore,  that  the 
differences  of  married  people  should  be  adjusted  in  accordance 
with  the  laws  of  the  community  to  which  they  belong,  and  dealt 
with  by  the  tribunals  which  alone  can  administer  these  laws. 
An  honest  adherence  to  this  principle,  moreover,  will  preclude 
the  scandal  which  arises  when  a  man  and  a  woman  are  held  to 
be  man  and  wife  in  one  country  and  strangers  in  another." 

A  decree  of  dissolution  pronounced  by  a  court  which  is  not 

^  See  a  discussion  of  this  case,  Pigott  on  Foreign  Judgments,  pp.  274,  275. 


202      CONGRESS   OF   LAWYERS  AND   JURISTS 


the  forum  domicilii  (subject  to  the  limited  exception  in  favor  of 
a  wife  which  I  have  stated),  unless,  perhaps,  it  were  shown  that 
the  respondent  had,  by  unconditional  appearance,  voluntarily 
submitted  to  the  jurisdiction,  should  be  refused  recognition  in 
all  other  countries.     The  law  of  England  is  now,  I  think,  defi- 
nitely settled  in  this  sense.     With  the  sincere  respect  which  is 
due  to  the  different  views  of  its  authors,  I  cannot  help  expressing 
my  regret  in  regard  to  such  legislation  as  seems  to  have  been  in 
force  in  the  State  of  Pennsylvania  in  1892,  whereby,  as  appears 
from  the  reported  English  case  of  Green  v.  Green  6^  Sedgwick, 
tried  before  Mr.  Justice  Gorell  Barnes,  in  1893,  it  was  made 
possible  for  a  married  woman,  if  only  she  had  formerly  been  a 
citizen  of  that  State,  on  showing,  in  her  petition,  that  she  had 
been  obliged  by  her  husband's  misconduct  to  leave  his  habita- 
tion or  domicile,  to  obtain  from  the  court  of  that  state  a  decree 
of  dissolution  of  marriage.     Jurisdiction  is  thus  held  to  be  well 
founded  on  a  former  citizenship  alone.     The  place  of  the  cele- 
bration of  the  marriage,  and  of  the  matrimonial  domicile,  may 
have  been  elsewhere.     Even  matrimonial  residence  within  the 
jurisdiction  of  the  State  may  never  have  existed.     Perhaps  that 
legislation  has  since  been  modified  or  repealed.     I  hope,  although 
I  confess  I  have  been  surprised  by  the  reports  which  I  have  read 
recently  in  American  newspapers  of  the  treatment  of  divorce  in 
the  courts  of  some  of  the  States,  that  it  has  not  been  imitated. 

In  regard  to  the  recognition  of  an  administrator,  appointed 
by  a  foreign  court  to  administer  the  personal  estate  of  a  deceased 
person  in  the  case  of  intestacy,  and  the  title  of  an  executor  which 
has  been  established  by  a  foreign  grant  of  probate,  the  propriety 
of  universal  recognition,  in  accordance  with  the  comity  of  nations 
is,  I  think,  generally  admitted.  The  administrator  or  executor 
docs  not,  indeed,  by  the  mere  virtue  of  the  proceeding  in  the 
foreign  court,  acquire  a  status  outside  its  territorial  jurisdiction; 
but,  by  the  comity  of  nations,  the  courts  of  the  country  in  which 
there  is  property  of  the  estate  of  which  the  administrator  or 
executor  seeks  possession,  will  generally  follow  the  appoint- 
ment or  the  grant  of  the  foreign  court,  and  act,  as  it  has  been 


PAPER    OF   MR.    JUSTICE   KENNEDY  203 


judicially  expressed,  as  auxiliary  to  the  foreign  court.  I  have 
used  the  phrase  "will  generally  follow,"  because  it  is  not  rea- 
sonable that  it  should  be  absolutely  bound  in  every  case  to  vaH- 
date  the  appointment  of  the  nominee  of  the  foreign  court  or 
grant  probates,  as  auxiliary  to  the  foreign  court.  There  might 
be  a  case  where  the  appointment  or  the  grant  would  be  a  pro- 
ceeding contrary  to  the  law  of  its  own  country.  Except  in 
such  possible,  but,  no  doubt,  very  exceptional,  circumstances, 
an  executor  or  administrator  who  comes  with  the  proper  author- 
ity of  the  foreign  court  will  be  clothed  in  the  manner  pre- 
scribed by  the  law  of  the  forum  in  which  he  seeks  recognition, 
with  authority,  as  the  representative  of  the  estate  of  the  de- 
ceased, to  deal  with  assets  within  the  jurisdiction  of  that  forum, 
and  to  sue  in  respect  of  the  deceased's  cJwses  in  action.  Of 
course,  as  he  draws  his  authority  from  the  local  forum  in  regard 
to  the  exercise  of  powers  within  its  jurisdiction,  he  will  rightly 
be  held  in  respect  of  such  exercise,  bound  to  conform  to  its 
laws  in  all  matters  of  procedure. 

In  regard  to  curators  and  guardians,  having  regard  to  the 
differences  of  opinion  and  of  legal  rule  which  exist  as  to  the  age 
of  full  capacity,  and  as  to  the  nature  and  extent  of  the  control 
which  the  law  should  intrust  to  the  discretion  of  one  who  stands 
towards  another  in  loco  parentis,  I  do  not  think  it  reasonable  to 
suggest  that  a  state  should,  in  all  cases,  he  bound,  without  any 
reservation  of  the  right  of  independent  inquiry  and  decision, 
to  recognize,  in  the  sense  of  enforcing,  such  rights  as  the  courts 
of  a  foreign  state  should  think  proper  to  confer  upon  a  person 
when  it  appoints  him  guardian  or  curator  of  another.  More 
than  one  reported  case  has  shown  that  an  Enghsh  court,  if  the 
welfare  of  an  infant  who  is  the  subject  of  a  foreign  state  is 
brought  before  it  for  consideration,  will,  whilst  not  surrendering 
its  own  discretionary  power,  pay  great  respect  to  the  wishes  of 
the  guardian  appointed  by  the  foreign  court,  and  this  degree 
of  recognition  is  all  I  think  that  can  be  reasonably  looked  for. 
Disabilities  of  a  penal  character  must  be  held  to  operate  only 
within  the  jurisdiction  of  the  state  whose  laws  impose  them. 


204     CONGRESS   OF  LAWYERS  AND   JURISTS 

And  so  an  English  court  has  refused  to  recognize  the  incapacity 
which  a  French  adjudication  had  attached  to  a  reckless  spend- 
thrift (prodigue),  who  was  not  an  infant,  and  has  rejected  the 
claim  advanced  by  his  conseil  judiciaire  to  interfere  with  his 
receipt  of  money  due  to  him  according  to  the  law  of  England. 

The  curator  or  committee  of  a  lunatic,  acting  under  a  foreign 
declaration  of  lunacy,  stands,  in  regard  to  the  claim  for  recog- 
nition abroad,  in  a  different  position.  Lunacy  is  universally 
recognized  as  a  thing  which  justifies,  and  indeed  requires,  the 
appointment  of  a  representative  protector.  Prima  facie,  the 
committee  of  a  lunatic,  appointed  by  the  proper  court  of  the 
residence  of  the  lunatic,  should  be  treated  as  a  person  rightly 
clothed  with  the  powers  which  the  foreign  appointment  has 
purported  to  give  him.  But  even  in  this  matter  the  court  of 
another  state,  should,  I  think,  retain  the  privilege  of  inquiring 
upon  good  cause  shown,  into  the  question  of  the  sanity  or  in- 
sanity of  the  alleged  lunatic,  if  the  representative  appointed  by 
the  foreign  state  asks  its  sanction  in  order  to  enforce,  within  the 
jurisdiction  of  the  other  state,  rights  derived  from  the  lunatic, 
or  in  order  to  deal  with  property  of  the  lunatic. 

In  regard  to  a  bankrupt's  representative,  whether  designated 
as  assignee  or  trustee,  every  one  should  desire,  wherever  there 
are  movable  assets  of  the  foreign  bankrupt,  that  there  should 
be  complete  recognition  of  the  title  of  the  person  appointed  by 
the  court  of  the  country  of  the  bankrupt's  domicile,  as  the  person 
in  whom  (according  to  the  legal  effect  of  the  appointment),  the 
bankrupt's  estate  is  vested,  or  to  whom,  for  the  benefit  of  cred- 
itors, the  administration  of  that  estate  has  been  intrusted  by 
that  court.  The  degree  of  such  recognition,  which  is  accorded 
by  states  at  present,  is  varied  and  unequal.  Germany,  for 
example,  appears  to  give  to  the  foreign  assignee  the  right  to  get 
in  assets  of  the  estate  in  Germany,  if  by  diligence  he  can  antici- 
pate the  action  of  German  creditors  in  obtaining  execution,  but 
the  fact  of  his  appointment  by  a  foreign  court  does  not  hinder  or 
invalidate  such  action  on  their  part.  In  Belgium,  according  to 
the  statement  of  Mr.  A.  F.  Topham,  in  an  interesting  article  in 


PAPER    OF    MR.    JUSTICE    KENNEDY  205 

the  Law  Quarterly  Review,  No.  LXXV,  it  has  been  judicially 
declared  that  "the  state  of  the  bankrupt  trader  extends  its 
effects  everywhere  where  the  trader  possesses  any  property;  the 
administration  of  bankruptcy  is  one,  indivisible  and  universal." 

In  regard  to  England,  the  general  principle  seems  to  be  that 
bankruptcy,  or  any  proceeding  in  the  nature  of  bankruptcy  in 
a  foreign  country,  where  the  bankrupt  is  domiciled,  is  an  assign- 
ment to  the  trustees,  assignees,  curators,  syndics,  or  others  who, 
under  the  law  of  that  country,  are  entitled  to  administer  his 
property,  of  all  his  movables,  or,  in  other  words,  of  his  chattels, 
personal  and  choses  in  action,  in  England;  and,  it  would  seem, 
as  far  as  English  courts  can  deal  with  the  matter,  of  his  movables 
situate  in  any  other  country.  (See  Dicey,  Conjiict  0}  Laws,  p. 
444.)  France,  in  practice  at  any  rate,  if  Hoffman's  case,  which 
Mr.  ToPHAM  cites  from  the  Journal  Clunet,  may  be  taken  as 
typical,  pays  Httle  or  no  respect  to  the  unity  or  universahty  of 
the  bankruptcy  administration.  It  is  an  interesting  case,  and 
illustrates  the  difference  between  the  French  and  the  Italian 
treatment  of  the  same  question.  Hoffman  carried  on  business 
in  London,  with  branch  estabHshments  in  Paris,  Milan,  and  else- 
where. He  was  declared  bankrupt  in  England.  Some  Italian 
creditors  attached  his  property  in  Milan.  The  court  there 
upheld  the  title  of  the  English  trustees  as  against  those  creditors 
on  the  ground  that  Hoffman  was  domiciled  in  England,  and  the 
Itahan  branch  was  connected  with  the  Enghsh  house.  After 
the  declaration  of  the  EngHsh  bankruptcy,  a  French  court  de- 
clared Hoffman  bankrupt  in  respect  of  his  branch  establish- 
ment in  Paris.  The  French  Court  of  Appeals  avowedly  pre- 
ferred the  interests  of  French  creditors  to  the  principle  of  uni- 
versality. 

In  these  circumstances  of  international  variance  {a)  as  to 
the  recognition  of  the  title  of  the  foreign  assignee  in  bankruptcy 
as  against  local  creditors,  (6)  as  to  the  priority  inter  se,  where 
there  are  concurrent  and  competing  bankruptcies,  and  (c)  as 
to  the  proper  test  of  competent  jurisdiction  to  adjudicate  a 
person  bankrupt,  i.  e.,  whether  the  competence  should  depend 


2o6     CONGRESS   OF  LAWYERS  AND   JURISTS 

upon  domicile  in  the  strict  legal  sense  of  that  term,  or  upon  the 
personal  residence  of  the  debtor  within  the  jurisdiction,  or 
whether  what  may  be  called  commercial  residence  should  be 
suflicient  to  justify  an  adjudication,  the  only  hope  for  uniform- 
ity in  the  recognition  of  the  representative  of  the  bankrupt 
appointed  by  a  foreign  court,  appears  to  lie  in  an  international 
convention.  Why  should  that  be  impracticable?  In  regard 
to  the  administration  of  the  debtor's  property,  where  bankruptcy 
has  been  declared  in  more  countries  than  one,  as  in  Hoffman's 
case,  suggestions  of  a  scheme  which  seem  to  be  both  practical 
and  practicable  have  already  been  put  forward  by  Dr.  Jitta, 
and  are  summarized  in  the  article  of  the  Law  Quarterly  Re- 
view, to  which  I  have  already  referred.  The  world  of  commerce, 
and  for  reasons  stated  by  Mr.  Topham,  the  English  part  of  it 
especially,  suffers  much  from  the  present  confusion,  and  the 
power  of  the  world  of  commerce,  if  exerted  in  unison,  is  great. 
There  are  no  side  currents  of  tradition  or  of  religious  or  moral 
sentiment  to  divert  or  hinder  the  course  of  unifying  reform  in 
this  direction,  such  as  unfortunately  must  impede  the  achieve- 
ment of  unity  in  respect  of  the  law  of  marriage.  A  real  ob- 
stacle, it  appears  to  me,  to  the  success  of  procedure  by  interna- 
tional convention  in  such  matters  is  that,  if  the  scheme  involves 
a  change  in  municipal  law  and  legislative  sanction,  it  is  not 
everywhere  easy,  in  these  busy  times,  to  get  a  legislative  author- 
ity, in  the  press  of  public  affairs,  to  give  sufficient  time  and  atten- 
tion to  a  matter  which  is  devoid  of  political  or  party  interest 
and  is  too  technical  to  create  any  enthusiasm  in  the  general 
public. 

And  here,  perforce,  1  must  conclude  this  address,  cursory 
and  incomplete  as  I  feel  it  to  be.  The  subject  is  too  large  and 
too  intricate  to  be  handled  in  a  paper  of  this  kind  as  one  would 
wish  to  handle  it.  It  is,  alas,  not  one  which  inspires  rhetorical 
audacity  or  lends  wings  to  the  flight  of  imagination.  Forgive 
the  absence  of  all  such  compensations  for  your  patience.  Let 
me  comfort  myself  with  the  thought  that  those  whom  I  have 
the  honor  to  address   are    not   gathered   together  here  for  the 


SIGNOR   PAVIA  207 


purpose  of  amusement,  or  even  for  intellectual  enjoyment.  You 
are  my  brethren  in  the  glorious  study  and  profession  of  the  law, 
assembled  for  serious  conference;  brethren  whose  united  efforts 
may  do  much  to  make  all  men  more  brotherly,  by  composing, 
in  some  measure,  the  conflict  of  laws,  and  to  give  throughout 
Christendom  to  a  decree  of  Justice,  wherever  made,  universal 
significance.     [Applause.] 

The  Acting  President  : 

We  have  listened  to  a  very  full  and  clear  discussion  of  the 
subject  which  has  been  before  us  this  morning  from  one  con- 
nected with  the  government  of  a  country  which  has  always  stood 
for  domicile  as  the  measure  of  personal  rights  and  the  test  of 
judicial  competency  in  matters  depending  on  personal  status. 
We  are  now  to  hear  a  continuation  of  the  discussion  by  one 
officially  connected  with  a  government  which  has  always  been  the 
leader  in  pressing  upon  jurists  the  claim  that  not  domicile,  but 
nationality,  was  the  test  to  be  regarded  in  these  respects,  a 
claim  put  forward  early  by  Italy,  which,  as  we  heard  yesterday, 
has  received  the  approval  of  The  Hague  Conferences  on  private 
international  law  with  respect  to  members  of  the  nations  of 
Continental  Europe. 

I  have  the  honor  of  introducing  to  you  Signer  Angelo 
Pavia,  a  member  of  the  Italian  bar,  and  of  the  Italian  Parlia- 
ment. 

Signer  Angelo  Pavia  of  Rome,  Italy,  a  Delegate-at- 
large  :^ 

La  questione  del  divorzio  e  in  Italia  in  questi  termini; 
I'augusta  parola  del  Re  disse — nella  solennita  di  una  funzione 
in  cui  ogni  promessa  diventa  dovere — che  e  necessario  sistemare 
la  legge  coniugale  contro  questa  tirannia  della  perpetuita  del 
disaccordo  matrimoniale ;  e  cio  disse  dopo  che  dall'  ambiente 
parlamentare  era  sorta  la  proposta  di  una  legge  che  largamente 
accordava  lo  scioglimento  di  legami  resi  nefasti  dalla  infamia 

'  For  an  English  translation  of  Sig.  Pavia's  remarks,  see  Appendix  C. 


2o8     CONGRESS   OF  LAWYERS   AND    JURISTS 


di  una  pena — da  un  malore  incorreggibile — da  minaccie  e  dal 
tempo. 

Uno  statista,  la  cui  morte  addoloro  il  mondo  degli  uomini 
politici  e  dei  giuristi — Giuseppe  Zanardelli,  si  era  fatto  pala- 
dino  di  questa  innovazione  giuridica,  ma  una  vera  sommossa 
della  Cliiesa,  cosi  potente  in  Italia,  arresto  la  necessaria  riforma; 
ed  oggi,  il  divorzio  esiste  ancora  come  progetto  di  legge  nei  nostri 
atti  parlamentari,  ma  molti  anni  dovranno  passare  prima  che 
anche  1'  Italia  possa  annoverare  fra  le  sue  leggi  civili  questa 
che  della  civiltk  e  un  vero  bisogno — la  fine  della  prigionia 
coniugale.  Intanto  agli  infelici  turbati  nella  loro  domestica  vita, 
si  era  aperto  uno  spiraglio  di  luce.  Tra  il  sentiment©  di  patria 
che  rende  chiaro  ad  ognuno  il  chiamarsi  cittadino  della  terra 
che  lo  vide  nascere  e  lo  strazio  di  dover  continuare  un'  amara 
connivenza  nelle  pareti  della  propia  casa,  si  era  trovata  una 
via  giuridica  che  rendeva  esuli  volontari  dalla  patria  politica 
i  cittadini  per  formarsi  una  nuova  patria  domestica.  Si 
accorreva  in  una  terra  ove  il  divorzio  era  concesso  e,  forti  della 
acquistata  naturahzzazione,  si  otteneva  lo  scioghmento  della 
aborrita  catena  e,  come  stranieri,  si  veniva  in  Italia  a  chiedere 
Tesecutorieta  della  sentenza  straniera. 

La  battaglia  fu  viva  nella  dottrina  e  nella  giurisprudenza 
intorno  a  questa  trovata. 

I  credenti  timorosi,  i  codini  si  sollevarono  in  massa  a  dire 
che  la  sentenza  estera  non  poteva  essere  delibata  nel  Regno 
perch^  con  un  artifizio  si  veniva  a  far  sentenziare  da  magistrati 
italiani  quel  divorzio  che  il  codice  patrio  chiama  contrario  al- 
I'ordine  pubblico,  perche  la  nostra  legislazione  proclama  la 
indissolubilita  del  matrimonio. 

I  liberali,  i  riformatori  invece  sostennero  che  1'  exequatur  di 
un  fatto  non  in  fieri,  ma  gia  avvenuto,  gia  compiutosi  perfetta- 
mente  all'  estero,  non  era  che  una  conseguenza  del  rispetto 
dovuto  alle  leggi  degli  altri  paesi. 

La  giurisprudenza  si  divise  pure  in  due  campi  e  mentre  le 
corti  di  Venezia  e  di  Firenze  liberalmente  fecero  trionfare  la 
delibazione  dei  giudicati  esteri;  la  Suprema  Corte  di  Torino,  in 


SIGNOR   PAVIA  209 


un  recente  giudicato,  che  mosse  a  rumore  tutto  il  campo  dei 
giuristi,  non  solo  vieto  la  esecutorieta  delle  sentenze  pronunziate 
a  favore  di  regnicoli  naturalizzati  all'  estero  per  ottenere  il 
divorzio, — condannando  la  mutata  cittadinanza  come  fraus 
legis — ma  giunse  persino, — sempre  sotto  il  pretest©  di  non  con- 
traddire  all'  ordine  pubblico  del  Regno — a  non  riconoscere 
neppure  il  divorzio  di  stranieri  sempre  stati  stranieri,  e  che 
giustamente  credevano  non  fosse  vana  parola  quella  scritta  nel 
Codice  Italiano,  nell'  art.  6  delle  Disposizioni  Preliminari;  che 
lo  stato  di  capacitk  delle  persone  e  i  rapporti  di  famiglia — e, 
per  conseguenza,  anche  il  cambiamento  di  stato  nascente  dal 
divorzio — sono  regolati  dalla  legge  della  nazione  cui  lo  straniero 
appartiene. 

Ebbene  cio  e  enorme,  e  siccome  il  negare  cio  h  di  vero  inte- 
resse  internazionale  e  bene  ed  e  bello  che  in  congresso  come 
questo — che  raduna  nella  ricerca  della  stabihta  del  giusto — 
tutte  le  nazioni  civili — sorga  un  voto  che  dica  che  non  si  vuole 
che  in  Itaha — terra  sempre  sacra  al  Diritto — alligni  una  tanta 
stranezza  giuridica. 

Tutti  avete  un  interesse  per  associarvi  nella  difesa  di  questa 
tesi.  Da  ogni  parte  del  mondo  si  accorre  per  godere  lo  splen- 
dore  del  nostro  creato,  ad  ammirare  la  bellezza  dell  Arte,  che 
popolo  di  gioielli  le  cento  citta  d'  ItaUa,  e  1'  ambiente  finisce  con  il 
conquistare  molti  stranieri  che  finiscono  per  stabihrsi  fra 
noi,  o  cercando  riposo  di  conquistate  dovizie  nello  azzurro  del 
Golfo  di  Napoli  o  nella  Conca  di  Palermo,  o  per  ricerca  di  lucri 
maggiori  insidiandosi  nei  centri  opulenti  di  vita  delle  citta  lom- 
barde.  Ora  se  h  giusto  che  questi  cittadini  s'  adattino — venendo 
a  risiedere  fra  noi — a  tutte  quelle  disposizioni  che  solo  la  legge 
Itahana  deve  regolare — e  altrettanto  giusto  che  essi  non  per- 
dano  quel  privilegio  sotto  la  cui  egida  credettero  sceghere 
nuova  dimora;  la  conservazione  della  loro  legge  personale  per 
tutto  cio  che  riguarda  1'  ambito  del  loro  stato  domestic©. 

Non  porto  fra  voi  la  questione  se  i  cittadini  Italiani  fattisi 
stranieri  abbiano  ragione  d'  invocare  il  riconoscimento  del  loro 
divorzio  ottenuto  come  stranieri  sempre  stati  tali,  non  si  vedano 


2IO     CONGRESS   OF   LAWYERS  AND   JURISTS 

vulnerati  in  un  diritto  acquisito  Quindi  non  vengo  a  sostenere 
tra  voi  un  beneficio  nazionale,  ma  a  perorare  con  voi,  per  voi, 
— fratelli  nostri  diletti  di  ogni  terra  lontana  che  venite  in  Italia 
a  darci  la  dolce  letizia  della  vostra  dimora, — affinche  resti  sta- 
bilito  che  voi  dovete  aver  pari  alia  costanza  del  nostra  clima  i 
raggi  del  nostra  sole  anche  la  costanza  delle  notre  leggi. 

Ora  il  nostra  Codice  con  un  liberalismo  che  ebbe  il  plauso 
di  tutti  i  giuristi  stabili  e  la  giurisprudenza  dei  nostri  Tribunali 
sanziono  che  gli  straneiri  sono  ammessi  a  godere  dei  diritti 
civili  attribuiti  ai  cittadini  e  per  I'art.  12  delle  Disposizioni  Pre- 
liminari  del  Codice  Civile,  e  per  I'art.  941  del  Codice  di  Proce- 
dura,  e  riconosciuto  ai  Tribunali  esteri  la  facoltk  di  pronunciarsi 
in  cause  che  concernano  il  diritto  pubblico  di  uno  Stato  estero, 
e  quindi  si  argomenta  che  i  Tribunali  del  Regno  hanno  facolta 
di  pronunciarsi  in  cause  che  concernono  il  diritto  pubblico  delle 
altre  nazioni,  e  per  gli  art.  105  e  106  del  Codice  di  Procedura, 
lo  straniero  puo  essere  convenuto  avanti  i  Tribunali  del  Regno 
per  qualsiasi  contraversia,  non  esclusa  quella  di  stato. 

Si  puo  fino  ad  un  certo  punto  ammettere  che,  pur  potendo 
lo  straniero  piatire  dei  suoi  diritti  avanti  i  giudici  Italiani,  non 
possa  chiedere  la  dichiarazione  di  divorzio  ab  origine  nel  Regno ; 
ma  quando  egli  ha  gia  ottenuta  questa  dichiarazione  nel  suo 
paese,  allora  in  Italia  non  si  chiede  altro  che  il  riconoscimento 
della  sovranita  della  giustizia  forestiera  nel  suo  propio  territorio. 
Nulla  vi  e  in  contrario  al  nostro  diritto  pubblico  dando  esecu- 
torietk  in  Italia  alia  sentenza  estcra  di  divorzio,  perche  non  si 
fa  che  constatare  la  cessazione  del  matrimonio  all'  estero. 
Pronunciato  legittimamente  il  divorzio  all'  estero  fra  due  coniu- 
gati,  il  libero  stato  cosi  riacquistato,  costituisce  per  loro  un 
vero  JUS  QUESITUM  che  dcve  essere  dalla  legge  Italiana 
riconosciuto.  E  con  ci6  non  si  viene  a  cooperare — come  dicono 
erroneamente  i  nostri  avversari — all'  opera  del  giudice  straniero 
da  parte  del  giudice  italiano  nel  pronunziare  una  sentenza  che 
ripugna  al  diritto  pubblico  italiano;  perche  il  constatare  un  fatto 
giuridico,  seguito  e  confermato  all'  estero,  per  svolgerne  gli 
effetti  nel  territorio  del  regno  lungi  dall'  essere  una  cooperazione 


SIGNOR    PA  VIA  211 


con  il  giudice  estero  nel  compiere  cosa  in  opposizione  alia  Icgge 
nazionale  d'  ordine  pubblico,  non  costituisce  che  V  effetto 
indiretto  della  sentenza  estera  di  divorzio  implicante  il  ricono- 
scimento  della  sovranita  della  giustizia  straniera. 

L'  esser  vietato  il  divorzio  in  Italia,  1'  essere  1'  indissolubilita 
del  matrimonio  dettata  da  ragioni  d'  ordine  pubblico  porta  alia 
consegucnza  giuridica  che  il  magistrato  italiano  non  potra  mai 
pronunciare  il  divorzio,  venga  esso  richiesto  da  cittadini  o  da 
stranieri  perche  trattandosi  di  disposizione  di  ordine  pubblico 
questo  deve  regolarmente  osservarsi  nel  regno  cosi  riguardo 
ai  cittadini  come  riguardo  agli  stranieri  che  si  trovano  nel 
nostro  Stato;  ma  quando  invece  si  tratta  di  stranieri  i  quali 
ottennero  nella  loro  patria,  sentenza  di  divorzio,  allora  non  e 
piu  contrario  al  nostro  ordine  pubblico  e  non  e  piu  vietato 
ai  nostri  magistrati  il  dedurre  ed  il  valutare  le  conseguenze 
giuridiche  dello  stato  degli  stranieri  quale  venne  legalmente 
riconosciuto  dai  tribunali  esteri  competenti. 

In  questo  caso  i  magistrati  itahani  si  trovano  di  fronte  a 
due  stranieri  che  domandano  il  riconoscimento  di  un  fatto  che 
interessa  il  loro  stato  personale  che  e  regolato  dalla  legge  della 
loro  nazione  ed  il  far  luogo  alia  loro  domanda  non  pub  turbare 
il  nostro  ordine  pubblico  perche  trattasi  di  un  fatto  avvenuto 
air  estero  in  conformity  delle  leggi  ivi  imperanti. 

Si  dice  dagli  avversari  che  in  conformita  dell'  art.  12  delle 
nostre  Disposizioni  Preliminari,  le  sentenze  delle  Corti  estere 
non  possono  derogare  alle  leggi  proibitive  del  regno  che  con- 
cernano  le  persone,  i  beni,  gli  atti  ne  alle  leggi  riguardanti  in 
qualsiasi  modol'  ordine  pubblico  o  il  buon  costume  ma  e  un 
errore  perche  una  legge  del  regno  puo  essere  derogata  da  una 
sentenza  estera  se  ha  autorita  rispetto  alio  straniero;  ma  le 
nostre  leggi  non  hanno  siffatta  autorita  per  quanto  concerne 
lo  stato  e  la  capacita  giuridica  degli  stranieri  ed  i  loro  rapporti 
di  famigha,  perche  sono  regolati  dalla  legge  della  nazione  a  cui 
appartengono.  Percio  la  sentenza  estera  di  divorzio  pronun- 
ziata  secondo  lo  statuto  personale  deiconiugati,  non  viene  a 
derogare  a  leggi  proibitive  italiane. 


212      CONGRESS   OF   LAWYERS  AND   JURISTS 

Si  dice  inline  clie  h  FRA  US  LEGIS  questo  riconoscimento  e 
che  il  magistrate  italiano — custode  della  legge  patria  deve 
respingere  qualunque  oflfesa  che  in  qualsiasi  modo  ad  essa  si 
faccia. 

L'  argomento  manca  di  base. 

Perch^  possa  parlarsi  di  atto  commesso  in  frode  alia  legge 
e  necessario  che  1'  agente  sia  sottoposto  alia  legge  che  intende 
di  eludere;  ora  gli  attori  di  questa  richiesta  sono  sempre  stranieri 
sia  che  fossero  tali  AB  ORIGINE  sia  che  lo  sieno  divenuti  poi. 
Percio  se  la  legge  che  regola  il  loro  stato  fe  la  legge  straniera  e 
non  1'  italiana,  non  vi  e  frode  valendosi  di  una  legge  che  non  e 
quella  che  si  vorrebbe  elusa. 

leri  un  oratore  tedesco,  sostenendo  nell'  efficace  suo  dire,  il 
giudice  stabile,  citava  con  reverenza  ed  ammirazione  una  gloria 
dei  giuristi  italiani — il  Mancini — permettete  che  io  citi — a  titolo 
di  onore  per  tutti  noi  che  professiamo  la  tesi  che  il  divieto  del 
divorzio  non  sia  un  principio  di  ordine  pubblico — un  tedesco — il 
Prof.  WiNDSCHRiD,  il  duce  di  quella  schiera  di  giureconsulti 
italiani  che  strenuamente  combattono  per  la  vittoria  della  nostra 
tesi. 

La  giurisprudenza  tedesca,  svizzera,  inglese,  e  la  vostra 
degli  Stati  Uniti  ci  e  pure  favorevole  ed  io  credo  sia  reso  omaggio 
al  principio  della  solidarieta  degli  Stati  costituenti  una  sola 
famiglia  invitandovi  a  sanzionare  in  cosi  solenne  congresso  il 
principio  che  nessuna  autorita  possa  toccare  al  patrimonio 
giuridico  personale  degh  stranieri  in  qucstione  di  Stato — ;  e 
percio  propongo  al  Congresso  un  ordine  del  giorno  che  risponde 
a  questi  sentimento;  e,  mentre  il  mio  pensiero  di  giustizia  anela 
di  vedere  nella  terra  di  Cesare  Beccaria,  la  quale,  fra  le  prime 
aboli  la  pena  di  morte — ,  abolita  la  pena  della  eterna  catena 
coniugale — che  e  la  morte  morale  della  bella  poesia  della 
famigha — il  mio  cuore  sente  che  la  sola  indissolubility  a  cui 
posso  dare  voto  h  il  culto  di  rispetto  e  di  entusiasmo  che  porto  a 
voi,  sacerdoti  potenti  della  umana  giustizia. 

Ordine  Del  Giorno: 

II  Congresso  Giuridico  di  St.  Louis  per  il  rispetto  dovuto  al 


MR.    JUSTICE    NESBITT  21 


o 


patrimonio  giuridico  personate  degli  stranieri  in  questioni  di 
stalo — ja  voti  che  in  lutie  le  nazioni  che  accordano  agli  stranieri 
it  godlmento  di  tutti  i  diritti  civili  sia  data  esecutorietd  alia 
sentenza  patria  di  divorzio.     [Applause.] 

The  Acting  President: 

In  connection  with  Signor  Pavia's  remarks  on  the  Italian 
project  of  a  divorce  law,  and  its  bearing  on  the  rights  of  Italians 
who  have  obtained  divorces  in  foreign  countries  where  they 
have  been  domiciled,  he  presents  this  motion : 

"The  Universal  Congress  of  Lawyers  and  Jurists,  considering  the 
respect  due  to  foreign  laws  and  establishing  matters  of  personal 
status,  expresses  the  wish  that  in  all  nations  where  foreigners  are 
conceded  all  civil  rights,  foreign  judgments  of  divorce  should  be 
fully  recognized." 

This  resolution  will  be  referred,  under  the  rules,  to  the  Com- 
mittee of  Nations. 

The  subject  will  now  be  further  discussed  by  Mr.  Justice 
Nesbitt  of  the  Supreme  Court  of  the  Dominion  of  Canada. 

The  Honorable  Wallace  Nesbitt,  Justice  of  the 
Supreme  Court  of  the  Dominion  of  Canada,  a  Delegate- 
at-large : 

Mr.  President  and  Gentlemen  of  the  Congress :  I  shall  not 
attempt  to  add  anything  to  the  very  exhaustive  and  masterly 
treatment  of  the  necessity  for  the  extension  of  the  nile  that 
judgments  should  be  recognized  by  foreign  courts,  but  shall 
refer,  in  some  detail,  to  the  practical  working  of  the  rules  which 
the  cases  show  have  been  formulated  on  the  various  sul^jects 
treated  in  the  paper  which  we  have  just  listened  to  by  Mr. 
Justice  Kennedy,  and  if  it  is  not  improper  for  me  at  this  point, 
I  wish  to  say  I  think  I  voice  the  views  of  the  whole  of  this 
audience  when  I  say  that  the  paper  we  have  had  the  pleasure 
of  Hstening  to  from  Mr.  Justice  Kennedy  is  a  most  remarkable 
one.     [Applause.] 

It  is  only  necessary  in  a  congress  of  jurists,  such  as  this  is. 


214     CONGRESS   OF   LAWYERS  AND   JURISTS 

to  listen  to  such  a  paper  in  order  to  realize  the  extent  of  reading 
and  the  extent  of  knowledge  required  to  write  that  paper,  a 
close  knowledge  of  the  judicial  systems  of  practically  every 
country  in  Europe,  and  a  very  accurate  knowledge  of  the 
American  system  as  well.  If  you  gentlemen  can  fancy  what  an 
array  of  text-books  alone  on  that  subject  it  means,  I  think  you 
will  agree  with  me  that  the  pleasure  we  have  had  of  listening  to 
it  is  a  most  remarkable  one. 

For  myself,  as  you  will  see  in  the  hurried  notes  that  I  have 
before  me,  I  do  not  concur  in  some  of  the  views  that  have  been 
put  forw^ard  by  Justice  Kennedy.  This  is  not  to  be  wondered 
at,  because  you  will  find  on  nearly  every  matter  he  has  treated, 
I  venture  to  say,  of  the  anywhere  from  eight  to  fifteen  of  the 
international  law-writers  dealing  with  the  subject  perhaps  not 
three  of  them  concur,  so  that  it  is  perhaps  not  to  be  wondered 
at  that  even  Britishers  will  not  take  the  same  view  of,  for  instance, 
the  right  to  defend  against  a  foreign  judgment,  on  the  ground 
of  fraud.  I  may  say  in  my  own  country  it  is  a  matter  of  fre- 
quent occurrence  that  a  judgment  in  Michigan,  Indiana,  lUinois, 
or  New  York  is  brought  into  one  of  the  provinces  of  Canada 
and  sued  upon,  and  promptly  the  plea  in  almost  ever}'  case  is 
set  up  that  the  court  from  which  the  judgment  was  obtained 
was  misled  by  fraud  of  the  person  in  favor  of  whom  the  judg- 
ment is  sought  to  be  enforced.  As  I  understand,  if  the  English 
rule  as  laid  down  is  to  be  fully  adopted,  the  result  would  be 
almost  in  every  instance  a  retrial  of  the  case.  In  other  words, 
you  appeal  from  a  Michigan  jury  to  an  Ontario  jury.  As  I 
shall  point  out  shortly  in  this  paper,  I  think  that  is  a  condition 
of  things  that  ought  not  to  prevail,  but  I  think  that  some  com- 
promise should  be  made  between  the  Continental  rule  which 
prevails  upon  the  subject  and  the  American  rule.  Referring  to 
the  Continental  rule,  the  reason  I  speak  with  some  familiarity 
of  it  is  that  in  the  particular  court  to  which  I  have  the  honor 
to  belong  we  have  both  the  French  law  from  Quebec  and  the 
English  law  from  the  other  provinces,  and  the  result  is  that  at 
the  same  sitting  that  court  would  probably  have  to  take  one 


MR.    JUSTICE   NESBITT  215 

view  of  the  Quebec  law  on  the  subject  and  a  very  different 
view  on  the  same  subject  practically  coming  from  another 
province.  Of  course,  you  have  had  in  your  own  Supreme 
Court  at  Washington  different  State  laws  receiving  different 
treatment  at  the  hands  of  the  Court. 

After  the  very  exhaustive  and  instructive  paper  to  which 
we  have  just  listened,  it  would  be  trespassing  too  much  on  your 
time  and  good  nature  to  do  more  than  glance  at  the  various 
headings  treated,  and  to  offer  a  few  observations  thereon. 

I  concur  heartily  in  everything  that  has  been  said  in  refer- 
ence to  the  desirability  of  extending  the  recognition  of  foreign 
judgments,  even  if  in  some  cases  the  court  has  to  give  effect  to 
such  foreign  judgments,  and  feels  that  it  would,  under  different 
circumstances,  have  come  to  a  different  conclusion  from  that 
which  has  been  come  to  by  the  foreign  court.  Speaking  of  the 
statement  that  there  can  be  no  question  as  to  the  international 
recognition  where  there  is  territorial  jurisdiction,  I  would  only 
suggest  that  the  text-writers  are  by  no  means  agreed  as  to 
what  is  included  in  the  word  "territory."  Is  this  to  be  con- 
fined to  the  land  where  there  is  possibihty  of  actual  mastery  or 
dominion,  or  is  the  three-mile  limit  of  waters  to  be  included  ? 
If  the  latter,  is  the  rule  to  be  confined  to  the  resolutions  adopted 
by  the  Institute  of  International  Law  in  1888? 

Judgments  in  personam.  I  take  it  the  principle  on  which 
foreign  judgments  in  personam  are  recognized  is  that  the 
judgment  creates  a  legal  obhgation  to  pay,  and  therefore  any- 
thing that  can  show  the  non-existence  of  such  an  obligation  is  a 
defense,  and  this  is  the  real  ground  for  the  exceptions  to  recog- 
nition which  now  obtain.  As  I  understand  these  they  may 
be  broadly  stated  in  four  classes: 

(a)  Excess  of  jurisdiction 

(b)  Want  of  notice  to  defendant 

(c)  Fraud 

(d)  They  must  not  infringe  on  maintenance  of  public  order 
or  morality. 

There  is  another  possible  exception,  namely,  that  courts 


2i6      CONGRESS   OF   LAWYERS  AND    JURISTS 

will  not  recognize  the  judgments  of  a  foreign  court  which  does 
not  itself  extend  that  courtesy  to  other  foreign  courts;  in  other 
words,  a  reciprocity  doctrine,  supported  as  you  know  by  the 
recent  majority  decision  in  Hilton  v.  Guyot,  159  U.  S.  113,  a 
decision  which,  in  my  humble  judgment  is  not  consistent  with 
the  view  of  the  best  modern  text-writers.  I  would  refer  you  more 
particularly  to  a  criticism  of  this  by  Sir  Frederick  Pollock 
in  the  Law  Quarterly  Review. 

Excess  of  jurisdiction.  Many  countries  broadly  assert  for 
their  courts  jurisdiction  in  all  cases  of  nationality,  and  this 
claim,  it  seems  to  me,  should  not  be  internationally  recognized. 
I  would  refer  you  to  the  various  tests  of  jurisdiction  given  by 
Bar  in  his  valuable  work  of  Private  International  Law,  for  the 
Continental  rule,  and  to  Mr.  Foote's  work  on  Foreign  and 
Domestic  Law,  1904  ed.,  for  the  most  recent  exposition  of  the 
English  and  American  rule.  It  would  be  easy  for  you  to  see 
how  difficult  it  would  be  for  you  to  attempt  a  definition  of  what 
should  be  a  test  for  international  recognition  of  jurisdiction  if 
you  glance  at  the  works  of  Pigott,  Storey,  Dicey,  Wharton, 
Beale,  and  others,  but  I  think  it  may  safely  be  said  that  there 
is  no  consensus  of  opinion  on  the  point.  If  I  were  to  choose 
from  a  mass  of  cases  I  would  refer  to  Lord  MacLaren's  judg- 
ment in  a  case  of  Way  good  v.  Bennie,  reported  in  Fourth  Court  0} 
Sessions  Cases,  12th  Vol.,  at  page  651,  as  an  admirable  attempt 
to  harmonize  the  conflicting  views  of  the  Continent  and  England 
and  America. 

Want  0}  notice  to  defendant.  The  English  cases  recognize 
an  exception  in  that  they  hold  that  the  required  notice  need  not 
necessarily  be  notice  in  fact  if  the  defendant  is  bound  or  has 
consented  to  accept  anything  less  as  a  substitute,  as  for  instance 
where  a  person  had  joined  a  foreign  company  the  statutes  or 
articles  of  association  which  have  contained  special  provisions 
authorizing  constructive  notice  of  process  or  action  by  something 
which  would  or  might  not  be  notice  in  fact.  Is  this  a  salutary 
rule  with  the  increasing  facilities  for  commerce?  Does  it  not 
double  the  danger  of  the  breach  of  the  old  rule,  that  natural 


MR.    JUSTICE    NESBITT  217 

justice  requires  that  no  man  shall  be  condemned  unheard? 
As  you  know,  stocks  are  purchased  daily  on  the  stock  exchange 
of  corporations  having  their  charter  rights  from  various  parts 
of  the  world,  and  if  the  private  regulations  or  private  provisions 
of  statutes  creating  these  companies  contained  provisions 
enabling  judgment  to  be  had  against  stockholders  perhaps  for 
the  whole  debts  of  the  concern  by  constructive  notice,  it  seems 
to  me  that  the  cause  of  freer  intercourse  and  trading  is  injured, 
not  helped,  by  the  recognition  of  judgments  obtained  upon  any 
such  constructive  notice.  I  look  for  attempts  on  the  part  of 
courts  to  break  away  from  the  rule  I  refer  to  promulgated  by 
such  cases  as  Bank  0}  Australasia  v.  Harding,  9  C.  B.  661 ;  Cop- 
lin  V.  Adamson,  L.  R.  9  Ex.  345;  Vallee  v.  Dumergue,  4  Ex.  290. 
I  agree  that  it  is  best  to  give  the  fullest  effect  to  foreign  judg- 
ments, but  subject  above  all  things  to  the  right  of  the  defendant 
to  have  full  notice  of  the  proceedings  affecting  him  and  the  op- 
portunity to  be  heard,  even  assuming  the  court  pronouncing 
judgment  has,  internationally  speaking,  full  jurisdiction  over 
the  cause. 

Fraud.  There  is  no  doubt  great  weight  to  be  attached  to 
the  observations  of  Lord  Coke,  that  fraud  avoids  all  judicial 
acts,  ecclesiastical  or  temporal,  and  to  those  of  Lord  Selborne, 
that  all  courts  of  law  and  equity  should  take  cognizance  of 
fraud  in  obtaining  judgments;  but  it  seems  to  me  that  it  is  a 
very  debatable  question  whether  the  parties  should  not  be 
relegated  to  the  courts  of  the  country  having  jurisdiction  in  the 
country  pronouncing  the  judgment,  and  compelled  to  litigate 
there  the  question  whether  such  judgment  has  not  been  obtained 
by  fraud.  The  limited  time  at  my  disposal  will  not  permit  of 
a  discussion  of  the  cases,  but  it  does  seem  to  me  that  if  we  are 
to  recognize  foreign  judgments  where  the  courts  have  juris- 
diction from  the  point  of  view  of  international  law  we  should 
assume  that  those  courts  would  rectify  any  error  arising  from 
fraud  on  application  to  them  and  proof  of  such  fraud,  and  if 
necessary,  proceedings  should  be  stayed  in  the  courts  of  the 
country  where  the  foreign  judgment  is  sought  to  be  enforced 


2i8     CONGRESS   OF   LAWYERS  AND   JURISTS 

to  enable  the  party  alleging  the  fraud  to  obtain  relief  in 
the  courts  imposed  upon,  and  if  it  appeared  that  no  process  was 
available  for  such  purpose,  then  and  then  only  should  the 
question  of  fraud  be  allowed  to  be  tried.  I,  of  course,  assume 
that  in  any  event  only  the  fraud  of  the  party  to  the  suit,  not  that 
of  a  mere  witness  (such  fraud  or  perjury  not  being  known  to  or 
connived  at  by  the  party  seeking  to  rely  on  the  judgment  as 
an  obhgation)  can  be  invoked.  The  question  is  a  very  practical 
one,  as  the  plea  that  one  of  the  parties  deceived  the  foreign 
court  by  wilfully  adducing  false  evidence  involves  the  examina- 
tion of  the  evidence  by  which  the  fraud  was  effected,  and  so 
retries  by  a  judge  or  jury  of  one  country  the  findings  of  fact 
of  the  other. 

The  ground  of  defence,  that  the  judgment  infringes  upon 
the  maintenance  of  public  order  or  morality,  leaves  open  again 
very  debatable  questions,  and  I  shall  be  surprised  if  it  does  not 
undergo  modification.  It  seems  to  me  one  that  should  be 
applied  sparingly,  owing  to  the  changing  views  of  the  world  on 
what  is  public  order  and  even  morality.  Take,  for  instance,  the 
views  prevalent  a  century  or  half-century  ago  of  public  divorce 
in  England  on  the  recognition  of  foreign  judgments  of  divorce 
by  courts  of  competent  jurisdiction  for  causes  not  known  in 
England,  and  see  the  views  obtaining  to-day.  I  instance 
Pemberton  v.  Hughes,  1899,  i  Ch.  781.  Would  a  judgment 
obtained  in  a  country  where  a  bond  for  payment  for  illicit  inter- 
course was  a  good  cause  of  action  receive  at  the  present  day  the 
same  treatment  as  fifty  years  ago?  See  also  the  recent  case  of 
Kaujman  v.  Gerson,  1904,  i  K.  B.  593,  where  a  bargain  in 
France  to  pay  a  sum  for  an  agreement  not  to  prosecute  a  crim- 
inal was  sustained  by  the  first  English  court,  although  such  a 
bargain  would  not  give  rise  to  a  cause  of  action  as  being  against 
the  view  of  public  policy  in  England.  This  judgment  was 
overruled,  but  see  the  vigorous  comment  in  the  judgment  in 
appeal  in  the  Law  Quarterly  Review  of  July,  1904,  pp.  227-229. 

Res  judicata.  The  rule  stated  by  Bar  in  his  second  edition, 
page  904,  would  seem  to  be  too  well  established  to  be  open  now 


MR.   JUSTICE   NESBITT  219 

to  criticism,  although  I  cannot  see  why  the  defence,  of  fraud 
for  instance,  should  not  be  applied  where  the  judgment  is  used 
as  a  means  of  defence  as  well  as  of  offence. 

In  speaking  of  recognition  of  judgments  in  personam,  I 
assume,  of  course,  that  it  is  understood  that  foreign  judgments 
obtained  on  a  foreign  penal  statute  are  excepted.  The  leading 
case  in  America  is  Wisconsin  v.  Pelican  Insurance  Co.,  8  Sup. 
Ct.  1370,  and  in  the  British  Empire,  Huntington  v.  Attrill,  1893, 
A.  C.  150.  I  assume  also  that  it  is  understood  that  all  foreign 
judgments  in  personam,  are  only  entitled  to  recognition  as 
creating  an  obhgation  between  the  same  parties  or  privies,  and 
in  the  case  of  the  Mecca,  6  Prob.  Div.  116,  it  was  held  that  a 
foreign  judgment  in  personam  would  not  be  enforced  in  England 
by  proceedings  in  rem.  I  presume  that  rule  would  be  followed 
elsewhere. 

Judgments  in  rem.  Where  the  judgment  settles  or  changes 
the  ownership  of  movable  or  immovable  property,  the  court 
possessing  jurisdiction  (and  in  the  absence  of  fraud),  the  judg- 
ment is  not  only  conclusive  against  the  parties  to  the  original 
action,  but  as  against  all  the  world.  The  rule  laid  down  by 
Mr.  Chief  Justice  Marshall  that  there  must  be  lawful  juris- 
diction over  the  cause,  the  thing,  and  the  parties,  seems  to  me 
to  be  the  universal  rule. 

I  might  say  here,  in  passing,  that  it  is  a  singular  thing  that 
many  of  the  rules  practically  recognized  as  universal  rules 
relating  to  international  law  were  either  hinted  at  or  suggested 
by  Chief  Justice  Marshall,  in  many  cases  twenty,  forty,  or 
fifty  years  before  they  were  adopted  by  other  jurists  throughout 
the  world.  You  may  be  very  proud  of  the  Louisiana  Purchase, 
but  I  think  you  can  be  prouder  of  the  man  who,  to  my  mind,  is 
the  greatest  jurist  the  world  has  ever  seen,  Chief  Justice  Mar- 
shall.    [Prolonged  applause.] 

It  may  be  found,  however,  that  the  difficulties  arise  when  you 
come  to  determine  to  what  the  conclusiveness  shall  be  held  to 
e.xtend,  and  it  is  difficult  to  reconcile  the  cases  with  the  universal 
recognition  of  the  well-defined  rule  of  incontestability.     I  am 


220     CONGRESS   OF   LAWYERS   AND    JURISTS 

unable  to  harmonize  the  well-known  case  of  Simpson  v.  Fogo, 
29  L.  J.  Ch.  657,  with  the  rule.  In  that  case,  you  will  remem- 
ber, a  creditor  of  the  owners  of  a  British  ship  obtained  in 
Louisiana  a  judgment  against  them  under  which  their  interest 
in  the  ship,  and  no  more,  was  sold  under  process  of  execution. 
The  Bank  of  Liverpool,  who  had  at  the  time  a  mortgage  on  the 
ship,  valid  according  to  English  law,  intervened  in  the  Louisiana 
proceedings,  and  a  judgment  was  pronounced  against  them  on 
the  ground  that  the  law  of  Louisiana  ignored  all  rights,  even 
though  acquired  in  England  in  an  English  ship  before  the  vessel 
had  passed  into  the  jurisdiction  of  Louisiana  that  had  not  been 
acquired  according  to  Louisiana  law.  The  English  court  held 
that  the  Bank  of  Liverpool  was  not  estopped  from  setting  up 
their  rights  as  mortgagees  in  an  English  court. 

Suppose  a  ship  condemned  as  a  prize  by  a  court  of  com- 
petent jurisdiction,  does  this  settle  the  question  of  neutrahty  in 
an  action  against  underwriters  ?  It  has  been  held  it  does  not. 
But  is  this  consistent  with  the  statement  that  the  judgment  is 
final  upon  all  facts  inferentially  decided  and  which  are  impliedly 
necessary  as  grounds  of  decision  ?  I  can  understand  the  decision 
if  the  rule  is  to  be  that  only  such  facts  as  are  expressly  found  and 
necessarily  laid  down  in  the  judgment  relied  on  will  be  adopted. 

Marriage  and  divorce.  A  judgment  of  divorce,  unhke  other 
judgments,  does  not  declare  merely  existing  rights,  but  it  intends 
to  create  a  new  condition  of  things,  and  therefore  ordinary  rules 
are  scarcely  applicable.  In  Canada  some  curious  questions 
have  arisen  as  to  marriage  with  Indians  according  to  Indian 
rites,  and  I  presume  such  questions  are  likely  to  arise  elsewhere 
where  there  are  no  priests  or  magistrates,  no  religious  or  civil 
authority  or  registers.  Why  should  not  such  a  marriage  be 
held  binding  if  it  possesses  the  essential  characteristics  of  a 
Christian  marriage,  namely,  the  idea  of  a  permanent  union 
with  one  woman  to  the  exclusion  of  all  others?  All  questions 
of  succession,  legitimacy,  etc.,  to  be  determined  accordingly, 
and  universal  recognition  to  be  given  to  a  judgment  based  upon 
this  consideration? 


MR.   JUSTICE   NESBITT  221 

Divorce.  The  rule  as  to  this  seems  well  settled  in  the 
British  Empire,  that  "a  decree  of  divorce  must  be  pronounced 
by  a  judge  of  the  domicile  of  the  husband,  no  matter  where  the 
offense  justifying  the  decree  is  committed  or  where  the  mar- 
riage was  celebrated,  except  in  the  single  case  of  a  wife  deserted 
by  or  compelled  to  live  apart  from  her  husband,  when  she  may 
apply  to  the  courts  where  the  husband  and  wife  were  heretofore 
domiciled."  I  thoroughly  agree  with  the  rule  laid  down  by 
Mr.  FooTE  in  the  1904  edition  of  his  Foreign  and  Do?nestic 
Law,  where  he  says: 

"  Domicile  being  a  question  of  fact,  it  is  not  competent  for  indi- 
vidual states  to  enact  restrictions  upon  or  facilities  for  its  acquisition, 
and  such  enactments  should  not  in  the  tribunals  of  other  states 
obtain  recognition." 

This  undoubtedlv  refers  to  some  of  the  laws  of  the  states  of 
the  United  States  and  of  some  other  countries  which  give  the 
courts  of  a  particular  state  or  countr}^  jurisdiction  to  grant 
divorces  after  a  certain  residence  by  one  or  both  of  the  parties 
in  the  state  or  country  in  question.  That  is  what  is  called  a 
matrimonial  domicile  or  bona  fide  residence,  and  such  standard 
is  taken  to  fix  jurisdiction.  While  this  is,  no  doubt,  sufficient 
to  found  decrees  of  ahmony,  separation,  and  the  like,  it  is 
wholly  insufficient  beyond  the  boundary  of  the  state  or  country 
to  found  jurisdiction  in  divorce. 

By  domicile  is  meant  without  distinction  domicile  by  fixed 
and  settled  purpose,  a  determination,  final  and  dehberate 
intention,  to  elect  a  country  as  a  place  of  habitation.  Mere 
residence,  however  long,  is  not  sufficient,  as  it  is  clear  beyond 
all  doubt  v^th  regard  to  the  domicile  of  birth,  that  the  personal 
status  clings  and  adheres  until  the  personal  status  of  another 
domicile  is  acquired. 

I  might  call  attention  to  a  recent  case  in  the  House  of  Lords 
where  domicile  was  held  not  to  have  been  obtained  although 
an  American  citizen  had  lived  in  England  from  1859  to  1897, 
mthout  ever  having  visited  America,  and  I  take  it  that  the 
House  of  Lords  must  have  held  that  in  such  a  case  the  English 


222      CONGRESS   OF   LAWYERS  AND   JURISTS 

court  could  not  grant  a  divorce  valid  outside  of  England.  If 
the  tests  applied  in  that  case  are  to  be  applied  in  cases  relating 
to  divorce,  I  fear  it  will  make  validity  of  many  judgments  of 
divorce  open  to  attack  under  the  plea  of  want  of  jurisdiction  in 
the  court  granting  the  divorce.  The  subject  is  one  of  such 
practical  importance  that  it  might  be  well  to  illustrate  my  under- 
standing of  the  practical  working  out  of  the  rule  above  indicated. 
Suppose  a  citizen  of  one  of  the  United  States  of  America  marries 
according  to  the  form  of  English  or  Canadian  laws,  an  English 
or  Canadian  woman,  the  status  or  capacity  of  the  parties  to 
marry  is  determined  by  the  law  of  the  domicile  of  the  parties,  the 
jorm  by  Enghsh  or  Canadian  law,  the  court  to  grant  a  divorce 
is  that  of  the  State  where  the  husband  has  his  domicile,  which 
court  can  grant  a  valid  divorce,  no  matter  where  the  cause  of  the 
divorce  may  arise,  and  no  matter  whether  the  cause  would  be 
one  recognized  as  valid  by  the  courts  of  England  or  Canada. 
No  other  court  whatever  would  have  jurisdiction  under  inter- 
national law. 

To  pursue  the  matter  further.  Suppose  a  citizen  of  one  of 
the  United  States  of  America  marries  in  the  States  an  English 
or  Canadian  woman,  and  suppose  he  elects  for  a  domicile  in 
either  England  or  Canada,  the  Court  in  England  or  Parhament 
in  Canada  (as  to  the  majority  of  the  provinces  which  have  no 
divorce  court)  would  be  the  only  court  having  jurisdiction  to 
grant  a  divorce  universally  recognized. 

Or  to  further  illustrate:  Suppose  a  domiciled  Frenchman 
marries  an  American  and  takes  her  to  live  in  France,  and  during 
a  visit  to  Egypt  or  elsewhere  an  act  is  committed  which  would 
be  a  sufficient  cause  for  divorce  in  France,  the  only  court  which 
can  grant  a  divorce  is  the  French  court.  Or  again,  a  not 
uncommon  case,  a  domiciled  Englishman  marries  an  American 
girl,  in  say  New  York,  and  the  married  couple  travel  about  in 
\arious  places,  and  then  a  divorce  is  desired  by  the  wife.  The 
only  vahd  divorce  must  be  obtained  in  England.  I  think  these 
illustrations  will  sufficiently  make  it  plain  that  a  great  number  of 
divorces  which  have  been  obtained   are  absolutely  worthless 


MR.    JUSTICE    NESBITT  223 

outside  of  the   jurisdiction  of  the  court   which  had  granted 
them. 

I  have  not  dealt  with  fraud  or  coHusion,  which  always  vitiates. 
By  collusion  I  mean  connivance  between  the  parties  to  bring 
about  the  state  of  affairs  creating  the  cause,  such  as  an  agree- 
ment that  one  should  commit  adultery,  or  the  hke.  It  appears 
to  be  the  better  opinion  that  after  the  state  of  affairs  justifying 
has  arisen  without  connivance,  it  is  not  collusion  for  one  of  the 
parties  to  accept  money,  etc.,  not  to  appear  or  oppose.  I  may 
here  mention  that  in  Canada,  under  the  British  North  American 
Act,  which  forms  our  written  constitution,  the  Parliament  of 
Canada  has  jurisdiction  in  matters  of  divorce,  and  in  the  case 
of  Susan  Ash,  Sir  John  Abbott,  then  leader  of  the  Senate, 
and  afterwards  Premier,  laid  down  the  doctrine  that  Parhament 
would  not  recognize  the  decrees  of  foreign  courts  in  divorces. 
He  said : 

"The  proposition  contended  for  by  those  who  insist  that  this 
divorce  is  valid  is,  that  inasmuch  as  there  has  been  a  judgment  of  a 
court— a  competent  court  in  the  place  where  it  was  rendered — we 
must  accept  that  judgment  as  binding  upon  us  as  declaratory  of  the 
dissolution  of  this  marriage,  as  effectually  dissolving  this  marriage. 
Now,  there  is  a  great  distinction  to  be  taken  between  an  argument 
of  that  kind  addressed  to  a  court  of  justice,  and  an  argument  of 
that  kind  addressed  to  a  tribunal  like  this.  This  House  is,  in  this 
instance,  acting  not  only  in  a  quasi-judicial  capacity,  but  is  acting 
in  a  legislative  capacity  as  well,  and  in  determining  to  pass  this  bill 
this  House  will  decide  in  its  legislati\-e  capacity  that  this  marriage 
is  dissolved.  The  effect  of  a  judgment  of  a  court  in  ohc  country  upon 
the  judgment  of  a  court  in  another  depends  upon  the  comity  between 
nations,  and  on  this  principle,  that  as  both  nations,  being  Christian 
and  civilized  nations,  have  determined  to  treat  the  subject  matter  of 
a  judgment  as  a  fit  matter  for  discussion,  inquiry  and  decision  by 
their  courts,  then  out  of,  as  it  were,  international  courtesy,  they 
treat  the  judgment  of  the  court  of  another  country-  upon  that  sub- 
ject— the  jurisdiction  over  which  is  common  to  the  courts  of  both 
countries — as  entitled  to  consideration  and  weight,  and  they  give  it 
by  courtesy  that  consideration  and  weight  involved  in  regarding  it 
as  prima  facie  a  correct  judgment.  That  proposition,  however, 
does  not  seem  to  me  to  apply  to  a  case  where  one  of  those  countries 
has  not  relegated  the  subject  matter  of  the  judgment  to  the  courts 
where,  in  one  of  those  countries,  the  courts  have  no  jurisdiction 


224     CONGRESS   OF   LAWYERS   AND   JURISTS 

over  it.  Where,  therefore,  the  subject  of  the  judgment  is  not  a 
matter  the  jurisdiction  over  which  is  common  to  the  courts  of 
both  countries,  the  courts  of  one  country  are  not  called  upon  by 
any  rule  of  courtesy,  such  as  that  arising  from  the  similarity  of  juris- 
diction, to  recognize  the  validity  of  the  judgment  of  its  neighbor. 
We  stand  in  that  position.  We  have  not  yet  recognized  the  power 
of  any  court  to  deal  with  the  question  of  divorce.  We  hold  it  to  be 
a  matter  beyond  the  jurisdiction  of  the  courts,  while,  on  the  contrary, 
on  the  other  side  of  the  line,  the  matter  of  divorce  is  so  much  within 
the  jurisdiction  of  the  courts  that  as  his  Honor,  the  Speaker,  has 
shown,  there  is  scarcely  any  ground  of  dilTerence  between  a  man 
and  woman  living  together  as  husband  and  wife,  which  has  not 
been  held  sufficient  to  justify  the  dissolution  of  marriage.  I  agree 
therefore  with  the  honorable  gentleman  from  Ottawa  that  there  is 
nothing  binding  in  the  argument  which  claims  for  a  judgment  by  a 
foreign  court  that  kind  of  consideration  and  recognition  in  this 
House  which  that  judgment  would  have  before  an  ordinary  tribunal 
upon  a  matter  the  subject  matter  of  which  was  common  to  both." 


I  apprehend  this  view  would  not  now  prevail,  as  since  its 
expression  the  text-writers  are  almost  universally  agreed  that 
the  doctrine  of  comity  is  not  the  true  basis  of  recognition  of  the 
efficiency  of  foreign  judgments,  and  if  the  latter  ground  of 
recognition  contended  for  by  the  text-writers  is  a  true  one,  the 
reason  for  the  distinction  between  the  recognition  by  Parlia- 
ment and  the  courts  would  fail,  and  as  the  law  for  the  courts 
of  the  British  Empire  may  be  taken  to  be  settled  that  "accord- 
ing to  international  law,  the  domicile  for  the  time  being  of  the 
married  pair  affords  the  only  true  test  of  the  jurisdiction  to 
dissolve  the  marriage."  I  take  it  that  the  Parliament  of  Canada, 
acting  as  a  court  in  this  particular,  would  adopt  the  present 
rule.  I  would  suggest  that  some  rule  by  which  not  only  domicile 
which  rests  in  intention,  but  domicile  coupled  with  some  overt 
public  act  of  declaration  of  domicile  should  be  required  in  order 
to  found  jurisdiction.  This  would  be  plain  enough  in  a  case 
of  foreign  citizens  who  might  be  required  not  only  to  elect  for 
a  domicile  in  the  country,  but  to  publicly  declare  their  intention 
to  create  a  new  domicile  and  acquire  a  nationality  of  the  courts 
of  the  country  in  which  they  sought  to  obtain  a  judgment  of 
divorce,  but  there  are  practical  difficulties  in  the  case  of  feder- 


MR.   JUSTICE   NESBITT  225 

ated  empires  where  the  courts  of  one  state  or  province  are,  with 
respect  to  the  courts  of  another  state  or  province,  in  the  empire 
or  federation,  foreign  courts;  in  such  a  case  it  might  perhaps 
be  necessary  to  require  a  public  declaration  of  domiciliary  inten- 
tion and  state  citizenship. 

Lunacy,  etc.  As  to  representation  of  estates  in  matters  of 
lunacy,  curatorship,  administration,  etc.,  the  judgments  of  the 
courts  having  jurisdiction  are  generally  recognized,  although 
necessarily  different  considerations  as  to  recognition  are  involved, 
as  for  instance,  in  cases  of  administration  ancillary  letters  are 
usually  required  to  be  taken  out,  as  the  courts  are  jealous  of  the 
rights  of  creditors  within  their  own  jurisdiction,  and  it  is  usually 
necessary  to  have  some  person  over  whom  the  court  has  personal 
jurisdiction  to  enforce  these  orders.  As  to  lunacy,  I  think  the 
rule  should  be  that  the  court  which  should  have  jurisdiction 
to  declare  lunacy  is  the  court  where  the  lunatic  has  a  bona  fide 
residence,  and  that  the  judgment  declaring  his  status  as  a 
lunatic  should  be  universally  recognized.  The  courts  of  other 
countries  where  he  has  either  movable  or  immovable  property 
protecting  the  rights  of  creditors  in  that  country  should  recog- 
nize the  declared  status  as  a  lunatic  and  the  curatorship  which 
the  courts  of  his  residence  have  created.  And  in  case  of  infant 
children  and  judgment  as  to  guardianship  the  court  to  declare 
their  status  should,  in  my  opinion,  be  the  court  of  the  domicile 
of  the  father,  because  I  think  it  is  generally  recognized  that  until 
an  infant  attains  age  he  is  not  capable  of  himself  obtaining  a 
domicile  different  from  that  of  the  father,  and,  therefore,  the 
court  to  declare  his  personal  status  should  be  the  court  of  the 
father's  domicile  at  the  time  of  his  death. 

It  would  seem  most  desirable  that  many  conflicts  of  laws 
should  be  regulated  by  treaty,  and  so  far  as  Canada  is  concerned, 
the  necessary  machinery  has  been  provided  by  our  constitution. 
Section  132  of  the  British  North  American  Act  provides: 

"Section  132.  The  Parliament  and  Government  of  Canada 
shall  have  all  powers  necessary  or  proper  for  performing  the  obliga- 
tions of  Canada  or  of  any  Province  thereof  as  part  of  the  British 


226     CONGRESS   OF  LAWYERS  AND   JURISTS 

Empire,  towards  foreign  countries,  arising  under  treaties  between 
the  Empire  and  such  foreign  countries." 

And  under  this  the  Parliament  of  Canada  could  act  should  the 
imperial  authorities  make  any  treaty  regulating  conflicts  of 
laws. 

I  think  it  is  a  very  great  pity  that  there  should  not  be  some 
legislation  immediately  regulating  many  questions  on  interna- 
tional law,  at  any  rate  between  Canada  and  the  United  States. 
The  growing  interchange  of  business,  owing  to  the  geographical 
continuity,  makes  it  very  important  that  there  should  be  well- 
defined  rules  applicable  to  both  countries  upon  many  questions 
which  are  constantly  arising.  Take,  for  instance,  bankruptcy, 
receiverships,  administrations,  etc.  Suppose  a  receiver  is 
appointed  for  a  railway  company  in  New  York  or  Michigan, 
can  such  receiver  maintain  his  right  to  the  property  of  the  com- 
pany temporarily,  necessarily,  say  in  Canada,  against  creditors 
who  may  wish  to  attach  such  cars  for  a  debt  sued  upon  in 
Canada,  but  perhaps  due  in  New  York,  where  the  receiver  was 
appointed  ? 

Again,  take  a  case  of  collisions  on  the  high  seas.  Why 
should  not  this  be  immediately  settled  by  treaty,  either  accord- 
ing to  the  English  rule  or  the  Continental  rule,  or  a  compromise 
between  the  two?  Mr.  Bar  suggests  a  good  working  rule  by 
way  of  compromise  which  might  well  be  adopted. 

Again,  the  question  of  legitimacy,  succession,  etc.,  might 
well  be  thrown  into  short  codified  rules  which  should  obtain 
universal  recognition. 

I  cannot  but  think  that  a  congress  such  as  this  could  do 
much  towards  bringing  about  some  such  result,  and  I  would 
impress  upon  the  members  of  the  American  Bar  Association  an 
active,  prompt  action  looking  towards  a  convention  of  one  or 
two  delegated  jurists  of  all  the  civihzed  countries,  the  business 
of  which  convention  should  be  the  consideration  and  framing 
of  a  short  code  of  rules  upon  some  of  the  subjects  I  have  indi- 
cated, which  should  be  binding  upon  the  courts  of  all  the 
countries,  and  which  could  no  doubt  rapidly  obtain  legislative 


MR.    KEASBEY  227 


force  from  all  the  countries  if  such  a  convention  could  be  got 
together,  and  could  agree  upon  short  rules  relating  to  the  prin- 
cipal subjects  and  return  them  to  the  respective  countries  with 
recommendation  that  they  be  passed  as  a  beginning.  I  would 
suggest  also  that  before  such  a  convention  a  short  memorandum 
should  be  obtained  from  each  of  the  countries,  of  the  law  in  each 
upon  the  subject,  so  that  a  comparison  would  be  easy  and  the 
matter  could  be  immediately  dealt  with. 

1  think  a  great  work  lies  with  the  American  Bar  Association 
wliich  convened  this  Congress  if  it  could  bring  about  at  an  early 
date  a  small  convention  of  the  kind  I  have  indicated,  with  at 
least  one  delegate  from  each  country,  and  that  in  the  case  of 
such  quasi-independent  nations  as  Australia,  New  Zealand, 
Canada,  and  India,  representations  be  allowed,  so  that  the 
Parliament  or  Assemblies  of  those  countries  might  feel  that  they 
had  a  voice  in  the  matter. 

Confucius  said:  "If  at  any  time  harmony  reigns  over 
humanity  as  it  ought  to  reign,  evil  will  no  longer  have  any  power 
over  mankind.  Physical  evils  are  only  the  consequence  of 
moral  evil,  of  the  hatred  and  injustice  which  always  separates 
human  beings."     [Applause.] 

The  Acting  President: 

There  is  now  an  opportunity  for  a  general  discussion  by  the 
Congress  on  the  subject  under  consideration,  and  gentlemen 
desiring  to  speak  will,  under  the  rule,  send  their  cards  to  the 
Chair.  The  first  speaker  will  be  one  of  the  Delegates  from  the 
Government  of  the  United  States,  Mr.  Edward  Q.  Keasbey  of 
New  Jersey. 

Mr.  Edward  Q.  Keasbey  of  Nev^  Jersey,  a  Delegate 
of  the  United  States  Government : 

Mr.  President:  There  is  a  point  suggested  by  Mr.  Justice 
Kennedy's  address  on  which  I  wish  to  say  a  word,  I  mean 
what  was  said  as  to  the  test  of  the  jurisdiction  being  the  com- 
petency of  the  court.     The  competency  of  the  court  was  made  a 


228     CONGRESS   OF  LAWYERS  AND   JURISTS 

criterion  of  the  jurisdiction  of  the  court,  and  the  question  of 
jurisdiction  in  actions  in  personam  seemed  to  be  made  to  depend 
on  whether  the  court  should  determine  that  it  had  power  to 
take  jurisdiction  of  the  question  and  the  person.  It  struck 
me  that  it  was  interesting  to  note  that  in  the  United  States  we 
have  already  reached,  under  the  Constitution,  the  principle 
which  it  is  sought  to  reach  in  this  conference,  the  principle  that 
full  faith  and  credit  should  be  given  to  the  judgments  of  the 
courts  of  other  states.  This  principle  is  applied  only  when  the 
court  pronouncing  this  judgment  has  jurisdiction,  and  the 
courts  of  the  United  States  have  not  yet  taken  the  ground  that 
jurisdiction  can  be  established  by  the  determination  of  the  court 
which  takes  cognizance  of  the  case,  but  they  have  rather  taken 
the  ground  that  jurisdiction  cannot  be  assumed  unless  there  is 
personal  service  of  process  on  the  defendant,  or  at  least  some 
kind  of  actual  legal  service  upon  the  defendant  within  the  terri- 
tory in  which  the  court  is  constituted. 

I  have  observed  that  in  England  the  tendency  has  been  in 
another  direction,  and  has  been  away  from  the  judgment  of 
Lord  Westbury  in  the  case  of  Cockney  v.  Anderson,  forty  years 
ago,  which  was  to  the  effect  that  there  must  be  service  in  the 
territory;  that  it  is  not  enough  to  give  notice  to  the  defendant 
elsewhere.  In  a  recent  English  case  it  was  said  that  it  makes 
no  difference  where  the  man  has  notice,  and  that  if  he  has  notice 
it  is  of  httle  consequence  whether  it  is  given  in  Dover  or  Bou- 
logne. In  America  it  is  held  that  there  is  a  difference  whether 
the  man  is  served  in  New  York  or  in  New  Jersey.  There  must 
be  jurisdiction  over  the  person  in  the  territory  in  which  the  court 
sits.  That  doctrine  has  been  adopted  by  all  the  States.  Lately 
in  New  Jersey  it  has  been  held  that  although  the  statute  pro- 
vides for  giving  notice  to  the  defendant  by  publication,  and  for 
a  decree  in  default  of  appearance,  yet  if  the  party  is  not  to  be 
found  within  the  State,  and  the  suit  does  not  relate  to  property 
within  the  State,  the  court  has  no  jurisdiction  to  make  a  decree 
in  personam  and  the  bill  must  be  dismissed  as  to  him. 

What  I  wanted  to  say  was,  that  the  tendency  in  England 


JUDGE   BREAUX  229 


seems  to  be  to  allow  the  court  to  determine  whether  it  has  juris- 
diction, so  that,  as  suggested  by  Mr.  Justice  Kennedy,  the 
jurisdiction  depends  upon  the  competency  of  the  court,  and  that 
is  determined  by  the  court,  but  in  the  United  States  it  is  now 
the  settled  doctrine  that  the  jurisdiction  exists  only  in  case  of 
service  within  the  territory. 

The  principle  that  jurisdiction  is  based  upon  the  presence 
of  the  defendant  within  the  territory  is  in  accord  with  the  idea 
of  domicile  as  the  basis  of  jurisdiction,  and  this  is  the 
idea  adopted  by  England  and  America,  while  in  France  and 
in  Italy  the  tendency  is  to  adopt  the  idea  of  nationahty. 
[Applause.] 

The  Acting  President: 

The  Chair  is  of  the  opinion  that  speeches  will  have  to  be 
limited  to  five  minutes,  instead  of  ten  minutes.  The  Chair  now 
calls  on  Judge  Breaux,  of  the  Supreme  Court  of  Louisiana, 

The  Honorable  Joseph  A.  Beeaux,  a  Delegate  from 
the  Supreme  Court  of  Louisiana,  U.  S.  A. 

Mr.  President:  I  had  not  intended  to  deliver  an  address  at 
all — I  merely  want  to  say  a  few  words.  I  have  Ustened  to  the 
papers  that  have  been  read,  and  the  discussion,  with  a  great 
deal  of  pleasure.  There  was  a  decision  of  the  Supreme  Court 
of  Louisiana  pronounced  a  great  many  years  ago.  Owing  to 
several  unfortunate  expressions  in  it  the  decision  is  made  to 
appear  as  if  preference  was  given  to  home  creditors.  That  was 
a  very  unfortunate  expression.  It  was  taken  up  by  an  Enghsh 
court,  and  was  severely  criticised.  A  learned  gentleman  said 
that  he  had  never  heard  that  the  decision  had  been  reversed 
since.  That  is  because  of  the  very  good  reason  that  no  occasion 
has  ever  arisen  to  reverse  it.  It  has  been  criticised  within  the 
limits  of  our  own  State.  Let  me  assure  you,  gentlemen  here 
present,  that  Louisiana  is  as  anxious  as  any  State  or  any  nation 
to  enforce  every  right  that  every  citizen  has,  whether  he  is  a 
citizen  of  Louisiana,  or  any  other  State  or  nation. 


230     CONGRESS   OF  LAWYERS  AND    JURISTS 

The  Acting  President: 

The  floor  is  now  given  to  Associate  Justice  Robert  M. 
Douglas,  of  the  Supreme  Court  of  North  CaroUna. 

The  Honorable  Robert  M.  Douglas,  a  Delegate  of 
the  Supreme  Court  of  North  Carohna,  U.  S.  A. 

Mr.  President:  This  is  neither  the  place  nor  the  occasion 
for  unprepared  addresses,  but  sometimes  free  expression  in  sim- 
ple words  of  the  convictions  of  a  hfetime  have  greater  effect 
than  any  power  of  studied  words. 

Coming  directly  to  the  point,  while  recognizing  the  fact  that 
divorces  granted  in  one  state  must,  of  necessity,  be  universally 
recognized,  as  they,  in  fact,  break  up  the  marriage  tie,  I  do  not 
think  that  a  decree  allowing  alimony  should  have  any  extrater- 
ritorial effect. 

Divorce  may  at  times  become  a  necessary  evil,  but  it  still 
is  an  evil  that  should  receive  neither  moral  encouragement  nor 
pecuniary  reward.  Many  States,  including  our  own,  deem  it 
contrary  to  public  policy  to  allow  any  ahmony  whatever  in  a 
divorce,  and  hence  are  loathe  to  enforce  any  such  decree, 
which  they  regard  as  directly  opposed  to  the  letter  and  spirit 
of  their  laws,  and  the  welfare  of  their  people.  Petitioners  obtain 
divorces  purely  on  the  sworn  allegation  of  bona  fide  residence 
in  the  State  whose  jurisdiction  is  invoked;  therefore,  they  should 
be  content  to  abide  there  and  enjoy  such  pecuniary  advantages 
only  as  its  laws  may  give  and  its  courts  can  enforce. 

I  am  personally  opposed  to  absolute  divorces,  that  is,  divorces 
permitting  remarriage.  Aside  from  its  religious  phase,  it 
strikes  at  the  very  root  of  society  by  destroying  its  chief  con- 
stituent of  unity,  the  family  home.  If  the  parties  alone  were 
affected,  I  would  care  but  httle,  but  it  directly  affects  the  helpless 
child  as  well  as  society  itself.  Especially  repugnant  are  those 
carpet-bag  divorces  which  are  so  freely  granted  in  certain  States 
to  merely  nominal  residents,  in  proceedings  which  are,  in  their 
essential  nature  and  purposes,  purely  ex  parte,  although  digni- 
fied by  the  title  of  actions  at  law.     [Applause.] 


PROPOSED    RESOLUTIONS  231 


Remarriage  after  divorce  has  well  been  called  successive 
polygamy,  and  it  seems  to  me  that  it  is  but  little  removed  from 
the  contemporaneous  polygamy  which  we  so  freely  denounce 
in  our  Mormon  citizens.  Should  not  we  avoid  even  the  sem- 
blance of  that  sin  which  we  denounce  so  strenuously  in  others  ? 

I  am  aware  that  our  own  State  has  always  permitted  divorces 
for  certain  causes,  and  has  recently  further  relaxed  its  ancient 
rule  apparently  to  meet  the  unusual  hardships  of  special  cases, 
but  I  am  sure  that  the  trend  of  pubHc  thought  is  strongly  in  favor 
of  its  restriction.  North  Carohna  feels  a  just  pride  in  her  mate- 
rial development,  but  she  is  prouder  still  of  the  manhood  of  her 
sons  and  the  womanhood  of  her  daughters.  Around  the  family 
hearthstone  clings  her  fondest  affections,  and  from  it  emanate 
her  noblest  aspirations.  I  know  she  is  called  the  'Rip  Van 
Winkle  State'  of  the  Union,  and  we  have  frequently  heard  that 
she  will  awake  from  her  slumbers  and  follow  w^hat  is  called  the 
progressive  Thought  of  the  Age,  but  it  were  better  to  let  her 
sleep  forever  than  to  awake  to  infamy  and  shame.     [Applause.] 

The  Acting  President  : 

The  limit  of  time  requires  the  discussion  to  be  closed  at  this 
point.  His  Excellency  Senor  Don  Manuel  de  Azpiroz, 
Ambassador  from  Mexico  to  the  United  States,  and  a  Vice- 
President  of  this  Congress,  submits  this  resolution: 

"That  the  Universal  Congress  of  Lawyers  and  Jurists  indorse 
all  efforts  intended  to  facilitate  the  surrender  of  perpetrators  of 
atrocious  crime,  who  seek  asylum  in  foreign  countries,  to  their 
national  judges,  for  the  sake  of  justice;  and.  therefore,  it  recom- 
mends to  the  consideration  of  the  government  represented  here, 
and  such  others  as  may  consent,  the  system  agreed  upon  by  the 
Republic  of  Mexico  and  the  Kingdom  of  Italy  in  their  treaty  on 
extradition  of  1899,  for  designating  criminal  facts  which  shall  form 
the  basis  of  extradition  proceedings." 

In  connection  with  this  his  Excellency  has  submitted  obser- 
vations in  writing,  which  will  be  handed  to  the  Secretaiy  for 
printing  in  the  proceedings  of  the  Congress.     [See  Appendix  D.] 

The  following  motion  has  been  sent  up  by  Mr.  Francis 


232      CONGRESS   OF  LAWYERS  AND   JURISTS 

Rawle  of  Pennsylvania,  former  President  of  the  American 
Bar  Association,  and  a  Delegate  in  this  Congress  from  the 
United  States  Government. 

"Resolved,  That  the  Committee  of  Nations  be  instructed  to 
consider  and  report  as  to  whether  in  the  interests  of  the  peaceful 
commerce  of  the  world  the  right  of  search  of  neutral  vessels  now 
accorded  to  belligerent  nations  cannot  properly  be  restricted  to 
such  parts  of  the  high  seas  as  are  reasonably  contiguous  to  the 
ports  of  the  combatants." 

While  that  resolution  calls  for  a  vote  of  the  Congress,  under 
the  general  rules  of  the  Congress,  it  will  be  submitted  to  the 
Committee  of  Nations  for  their  opinion  as  to  whether  it  should 
be  submitted  to  the  Congress  and  the  action  indicated  taken. 

The  following  is  presented  by  Mr.  George  Whitelock  of 
Maryland,  a  Delegate  from  the  American  Bar  Association: 

"Resolved,  That  the  Committee  of  Nations  be  instructed  to 
consider  and  report  whether  cases  of  infraction  of  police  regulations 
should  not  be  made  an  exception  to  the  immunity  from  the  jurisdic- 
tion of  local  tribunals  accorded  to  the  representatives  of  foreign 
nations  in  the  countries  to  which  they  are  accredited." 

That  also  will  be  referred. 

The  following  resolution  is  presented  by  Mr.  Henry  C. 
NiLES,  a  Delegate  of  the  Pennsylvania  Bar  Association: 

"Resolved,  That  this  Congress  records  the  death,  during  its 
sessions,  of  Hon.  George  F.  Hoar,  of  Massachusetts,  with  keen 
grief  and  deep  regret. 

"He  was  one  of  its  most  distinguished  members,  and  his  pro- 
found learning,  consistent  patriotism,  and  ripe  experience  have  here 
been  sadly  missed.  His  example  will  be  long  an  inspiration  to  all 
students  of  law  and  lovers  of  justice. 

"Resolved,  That  the  Secretary  convey  to  Mr.  Hoar's  family  an 
expression  of  the  condolence  of  this  Congress,  with  a  copy  of  these 
resolutions." 

These  resolutions  will  all  be  referred,  according  to  the  rule, 
to  the  Committee  of  Nations,  without  exception. 

Mr.  Fabius  H.  Busbee  of  North  Carolina,  U.  S.  A.,  a 
Delegate-at-large : 


REPORT    OF    COMMITTEE    OF    NATIONS     233 

Mr.  President :  Would  it  not  be  in  order  that  the  rule  should 
be  suspended  in  regard  to  the  last  resolution  ?  I  had  the  honor 
of  introducing  a  similar  resolution  before  the  death  of  Senator 
Hoar,  which  has  not  been  acted  upon,  and  action  on  this  will 
prevent  any  action  on  the  other. 

The  Acting  President: 

The  Chair  rules  the  gentleman  out  of  order.  The  rules  of 
this  Congress  are  like  the  law  of  the  Medes  and  Persians, 
irrevocable  and  unalterable. 

The  next  business  before  us  is  the  report  of  the  Committee 
of  Nations,  by  its  chairman,  Mr.  Justice  Nesbitt. 

Mr.  Justice  Nesbitt  : 

Mr.  President:  I  shall  not  trouble,  at  this  late  hour,  the 
Congress  with  the  reading,  as  I  did  yesterday,  of  the  material 
brought  before  us. 

The  matter  first  in  hand  is  that  of  patents,  contained  in  a 
resolution  submitted  by  Mr.  Joseph  R.  Edson  of  Washington, 
D.  C.     The  Committee,  after  discussion,  have 

"Resolved,  That  it  is  of  great  importance  that  the  laws  of  the 
different  countries  on  the  subject  of  patents  be  harmonized  so  that 
patents  can  be  granted  according  to  the  same  principles,  and  on  Uke 
terms  and  conditions  in  each,  and  that  the  expenses  of  a  patentee  in 
obtaining  a  patent  be  reduced  as  much  as  possible,  and  the  Congress 
further  invites  the  governments  to  consider  the  propriety  of  regu- 
lating the  renewal  or  extension  of  patents  on  like  conditions  in  each 
countr}\" 

On  motion  the  report  was  accepted  and  the  resolution 
adopted. 

Mr.  Justice  Nesbitt  : 

In  reference  to  the  communication  from  Mr.  James  E.  Babb 
of  Idaho,  in  respect  to  the  exchange  of  law  publications  and 
statutes,  the  matter  was  deemed  by  the  Committee  to  be  of 
very  great  importance,  and  I  am  sorry  that  time  will  not  per- 
mit me  to  bring  before  you  some  of  the  information  obtained 


234     CONGRESS   OF   LAWYERS  AND   JURISTS 

from  the  different  Delegates.  In  the  United  States,  I  see  by  a 
report  from  a  gentleman  in  charge  of  the  matter  in  the  Con- 
gressional Library,  that  there  is  a  bureau  now  estabhshed  by 
the  United  States  Government  which  authorizes  the  librarian,  to 
the  extent  of  one  hundred  copies,  to  exchange  with  any  country 
certain  publications.  The  Committee,  after  deliberation,  will 
ask  you  to  adopt  the  following : 

"Resolved,  That  this  Congress  recommends  that  the  Nations 
represented  here,  and  such  others  as  may  consent,  enter  into  an 
agreement  for  the  mutual  exchange  of  publications  containing  the 
statutes  of  each,  and  the  decisions  rendered  by  the  courts  of  last 
resort  in  each,  and  the  Vice-President  from  each  Nation  in  the  Con- 
gress is  requested  to  bring  this  matter  to  the  attention  of  the  proper 
authorities  in  his  own  Government,  so  that  it  may  result  in  the  various 
Governments  establishing  a  bureau  where,  on  any  Government 
sending  its  own  statutes  and  the  decisions  of  its  highest  court  to  the 
other  Government,  there  will  be  an  interchange." 

On  motion  the  report  was  accepted  and  the  resolution 
adopted. 

Mr.  Justice  Nesbitt: 

Mr.  Street  of  Galveston,  Texas,  submitted  a  communica- 
tion in  reference  to  the  permanent  organization  of  an  inter- 
national association  of  lawyers  and  jurists.  I  may  say  for  the 
information  of  the  gentlemen  present,  that  to  speak  of  this  as 
the  first  Congress  of  its  kind  in  the  history  of  the  world  is 
erroneous.  As  you  gathered  from  the  observations  of  Mr. 
Justice  Kennedy  this  morning,  there  have  been,  I  think,  at  least 
five  very  important  congresses  of  this  character  held  at  various 
places  in  Europe,  and  the  discussions  that  took  place  were  the 
subjects  of  a  great  deal  of  controversy.  The  Committee  has 
considered  carefully  the  resolution  offered  ])y  Mr.  Street,  and 
will  report  as  follows : 

"They  are  convinced  that  an  international  association  of 
jurists  and  lawyers  meeting  at  stated  intervals  to  consider 
subjects  of  general  interest  would  be  an  organization  likely  to 
accomplish  important  results.     It  would  promote  an  acquaint- 


AN   INTERNATIONAL    BAR   ASSOCIATION    235 

ance  between  lawyers  all  over  the  world,  and  so  establish  strong 
links  between  different  countries,  most  useful  in  times  of  inter- 
national difiiculty.  It  would  facilitate  an  interchange  of 
opinion  on  questions  of  interest  to  the  lawyers  of  every  country. 
It  would  exercise  a  strong  influence  in  favor  of  uniform  laws 
on  many  subjects,  and  would  hasten  the  adoption  of  reforms. 
All  associations  which  bring  the  representatives  of  different 
countries  together  upon  a  common  ground  must  tend  to  prevent 
misunderstanding  and  to  cement  international  friendship.  The 
Committee  is,  therefore,  in  hearty  sympathy  with  the  purpose 
of  the  resolution.  They  recognize,  however,  that  it  is  impossible 
for  this  conference  of  men,  gathered  from  widely  different 
places,  and  on  the  point  of  separating,  to  perfect  a  scheme  for 
such  a  permanent  organization  as  is  proposed.  They  have 
not  the  necessary  machinery,  and,  after  to-morrow,  conference 
among  the  members  of  any  committee,  which  should  be  inter- 
national in  its  composition,  must  be  conducted  by  correspondence 
and  with  great  inconvenience  and  delay.  They,  therefore, 
recommend  that  the  American  Bar  Association,  which  has  been 
so  active  in  assembling  this  Congress,  be  requested  to  continue 
the  work,  and,  through  its  officers,  take  such  steps  as  are  neces- 
sary to  organize  an  international  association  of  jurists  and 
lawy'ers.     To  this  end,  they  offer  the  following  resolution: 

"Resolved,  That  this  Congress,  recognizing  the  importance  of 
promoting  friendly  intercourse  between  the  jurists  and  lawyers  of 
different  nations,  to  the  end  that  by  harmonious  effort  they  may 
labor  efficiently  for  the  improvement  of  the  law  and  the  maintenance 
of  international  peace,  request  the  American  Bar  Association  to  take 
such  steps  as  are  necessary  to  organize  a  permanent  association  of 
lawyers  representing  the  different  countries  of  the  world,  which 
shall  meet  at  intervals,  to  discuss  legal  questions  of  public  interest; 
and  that  this  resolution  be  transmitted  to  the  secretary  of  the  Amer- 
ican Bar  Association." 

The  Acting  President: 

Gentlemen,  you  have  heard  the  report  of  the  Committee 
of  Nations.  Does  any  gentleman  desire  to  discuss  the 
report  ? 


236     CONGRESS   OF  LAWYERS  AND   JURISTS 

Mr.  Justice  Kennedy  of  England : 

Gentlemen:  I  would  just  like  to  say  a  word  about  this, 
merely  because  some  of  you  here  may  not  know  of  the  facts 
which,  I  think,  should  be  known  and  may  usefully,  as  it  were, 
be  considered  in  reference  to  this  resolution,  to  which  I  see  no 
objection,  and  that  is  this,  that  there  has  existed  for  many 
years  now — certainly  more  than  thirty — under  slightly  changed 
names,  what  is  deemed  now  an  international  law  association, 
a  body  that  already  contains,  among  the  hsts  of  its  members, 
many  distinguished  jurists — jurists  from,  I  think  I  may  say, 
almost  every  civilized  country.  It  contains  the  names  of  a 
large  number  of  men  who  belong  to  the  American  Bar  Associa- 
tion. There  are  committees  on  almost  every  important  subject. 
No  association,  or  no  body,  I  think,  has  ever  given  the  time  and 
attention  of  able  and  competent  men  to  such  questions  as 
foreign  judgments,  for  instance,  as  the  International  Association. 
Our  meetings  are  held  in  different  countries,  and  one  most 
enjoyable  was  the  one  we  held  in  Buffalo  at  the  hospitable 
invitation  of  the  American  Bar  Association,  where  we  worked 
together.  Many  members  of  the  American  Bar  Association  are 
members,  and  I  think  my  friend  Judge  Baldwin  is  one  of  our 
vice-presidents. 

I  appear  as  a  Delegate,  also  as  a  vice-president,  and,  for  the 
purpose  of  this  Congress,  as  a  representative,  of  the  International 
Law  Association,  which,  I  think,  may  be,  on  consideration,  found 
to  be  a  body  which  at  present,  while  it  would  be  delighted  in 
any  accession  of  help,  is  a  body  that  is  really  actively — not 
merely  existent,  but  most  actively — existent  for  the  excellent 
purposes  recommended  by  the  Committee  of  Nations.  I  think 
I  ought  to  say  this,  because,  while  there  can  be  no  possible 
objection  to  other  bodies  working  too,  yet,  at  the  same  time, 
it  is  always  a  pity  to  multiply  organizations,  and  I  think  it 
will  be  found  that  there  is  in  the  International  Law  Associa- 
tion both  the  cosmopolitan  character  desired,  and  also,  I 
think  one  may  say,  a  readiness  to  co-operate  with  any  other 
association. 


PAPER    OF   MR.    FINKELNBURG  237 

On  motion  of  the  Honorable  Martin  Dewey  Follett 
of  Ohio,  U.  S.  A.,  a  Delegate-at-large,  a  vote  on  the  pro- 
posed resolution  was  deferred  to  the  afternoon  session  of 
the  Congress. 

At  I  P.  M.  the  Congress  took  a  recess  until  2  p.  m. 

[During  the  recess  the  members  and  guests  partook  of  a  luncheon, 
given  by  the  St.  Louis  bar,  which  was  served  on  the  stage  of  Festival 
HaU.] 


THIRD  DAY 

Friday,  September  30,  1904 

AFTERNOON  SESSION 

The  Congress  was  called  to  order  at  2  p.  m.  by  Vice- 
President  the  Honorable  Sir  William  R.  Kennedy,  act- 
ing as  President. 

The  Acting  President: 

I  will  now  call  on  Mr.  G.  A.  Finkelnburg  to  read  us  a  paper, 
which  he  has  promised,  on  "The  Protection  which  should  be 
Accorded  to  Private  Property  on  the  High  Seas  in  Time  of 
War." 

"The  Protection  which  should  be  Accorded  to 
Private  Property  on  the  High  Seas  in  Time  of 
War," 

a  paper  by 

The  Honorable  Gustavus  A.  Finkelnburg  of  St. 
Louis,  Mo.,  U.  S.  A.,  a  Delegate  from  the  United  States 
Government : 

Mr.  President  and  Gentlemen:  Before  reading  my  very 
brief  paper  on  this  subject,  I  wish  to  say  that  the  subject  was 
originally  assigned  to  abler  hands.    The  subject  was  assigned 


238       CONGRESS   OF   LAWYERS  AND   JURISTS 

to  Mr.  Charles  Henry  Butler  of  Washington,  D.  C.  Owing 
to  the  unexpected  and  unfortunate  illness  of  Mr.  Butler,  he 
could  not  attend,  and  his  paper  was  not  in  such  a  state  of  com- 
pleteness that  it  could  be  read  by  some  one  for  him  at  this  meet- 
ing. Under  these  circumstances,  about  two  weeks  before  this 
Congress  met,  the  Committee  having  in  charge  these  matters 
asked  me  whether  I  would  not  endeavor  in  some  measure  to 
fill  the  vacancy  upon  the  programme.  I  have  endeavored  to 
do  so,  but,  Mr.  President,  if  the  paper,  as  I  fear,  bears  upon  it 
marks  of  haste,  I  will  have  to  ask  your  kind  indulgence. 

It  has  been  said  that  inviolabihty  of  person  and  property 
is  the  only  true  basis  on  which  the  spiritual  and  material  com- 
merce between  the  nations  can  flourish  and  reach  the  remotest 
portions  of  the  earth,  and  that  therefore  it  should  be  respected 
by  all  civihzed  nations  as  much  as  possible  in  war  as  in 
peace. 

The  mitigation  of  the  laws  of  war  has  been  going  on  ever  since 
the  time  of  Grotius.  Owing  to  the  want  of  an  international 
tribunal  to  speak  with  authority,  and  owing  to  divergent  national 
interests,  this  movement  has  necessarily  been  a  slow  one.  But 
the  growth  of  civihzation  gradually  affects  and  absorbs  all  the 
activities  of  man,  and  war  has  not  been  exempt  from  its  restrain- 
ing and  humanizing  influences. 

The  old  practice  was  to  inflict  the  greatest  amount  of  injury 
and  hardship  possible — the  modern  practice  is  to  inflict  the 
smallest  amount  of  injury  and  hardship  consistent  with  the 
necessities  of  war. 

In  war  on  land  we  have  indeed  made  great  progress  in  this 
direction.  In  the  treatment  of  prisoners,  in  the  treatment  of 
the  enemy's  wounded,  and  the  degree  of  immunity  now  accorded 
to  unoffending  non-combatants  in  their  persons  and  property; 
in  these  and  other  matters  we  have  gone  to  the  utmost  extent 
compatible  with  the  conduct  of  active  hostihties.  But  on  the 
ocean,  one  of  the  old-time  practices  with  respect  to  private 
property  still  remains.  I  refer  to  the  rule  of  international  law, 
still  adhered  to,  that  the  private  property  of  the  enemy  found 


PAPER    OF    MR.    FINKELNBURG  239 

at  sea,  or  afloat  in  a  port,  is  liable  to  capture  and  confiscation — 
the  proceeds  being  usually  divided  among  the  captors. 

It  is  a  rule  old  in  age  and  authority  though  much  out  of  Hne 
with  the  more  modern  ideas  of  warfare.  International  law  of 
to-day  permits  the  capture  of  private  property  in  war  on  land 
only  under  certain  exceptional  circumstances  when  the  exi- 
gencies of  the  war  make  it  imperative  for  mihtary  purposes. 
This  amelioration  of  the  laws  of  war  did  not  come  to  a  full 
development  until  the  nineteenth  century,  although  the  germ 
is  to  be  found  as  far  back  as  Magna  Charta,  which  provided  that 
the  property  of  foreign  merchants  in  England  should  be  pro- 
tected even  in  war  if  the  enemy  reciprocated.'  The  modern 
tendency  is  to  confine  war  to  pubHc  warfare,  i.  e.,  warfare 
between  armies  and  armies — between  navies  and  navies — 
leaving  non-combatants,  as  much  as  possible,  free  from  injury 
to  persons  and  property.  But  on  the  high  seas  we  still  chase 
after  booty,  and  plunder  the  property  of  non-combatants,  very 
much  as  was  done  in  the  centuries  gone  by. 

From  an  ethical  standpoint  such  a  legalized  appropriation 
of  the  private  property  of  others  is  not  calculated  to  strengthen 
the  respect  for  property  rights  in  general,  or  to  elevate  the 
standard  of  legal  conscience  among  the  people. 

From  an  economical  standpoint  the  enormous  losses  inflicted 
upon  all  maritime  nations  by  the  present  system  of  captures 
seem  out  of  all  proportion  to  the  gains.  Indeed,  it  is  doubtful 
whether  the  losses  thus  inflicted  upon  belligerents  have  any 
appreciable  influence  on  the  final  result  of  a  war  or  tend  to 
shorten  its  duration,  and  yet  unless  they  do  so  there  is  no 
legitimate  excuse  for  them,  and  the  existing  practice  becomes  a 
wanton  increase  of  the  hardships  of  war,  and  a  wasteful  destruc- 

^  The  decision  of  the  U.S.  Supreme  Court  in  the  case  of  Brown  v.  U.  S. 
(8th  Cranch,  no),  rendered  in  the  early  part  of  the  nineteenth  century,  shows 
the  transition  era.  The  court  still  recognizes  the  abstract  legal  right  to  seize 
and  appropriate  the  private  property  of  an  enemy  subject,  but  speaks  of  "The 
mitigation  of  this  rigid  rule  which  the  humane  and  wise  policy  of  modern 
times  has  introduced  into  practice,"  and  then  refuses  to  enforce  the  right  in 
the  case  before  it,  because  Congress  had  not  passed  a  special  act  directing  an 
exercise  of  that  right  during  the  War  of  1812.  Evidently  the  court  was  loath 
to  apply  the  old  rule  and  found  a  way  to  escape  it. 


240     CONGRESS   OF  LAWYERS  AND   JURISTS 

tion  of  values  created  by  the  peaceful  industry  of  man.  In  the 
Napoleonic  wars  the  French  commercial  marine  was  destroyed 
at  an  early  day,  but  the  Empire  flourished  until  its  armies  were 
defeated  at  Leipzig  and  Waterloo.  The  losses  entailed  on 
American  commerce  by  Confederate  cruisers  during  our  Civil 
War  were  very  great.  They  did  not  shorten  the  war  or  change 
the  result.  They  only  added  to  the  bitterness  engendered 
between  a  kindred  people. 

After  the  late  Spanish  War,  President  McKinley,  in  a  mes- 
sage to  Congress,  spoke  of  this  practice  as  the  "waste  of  war," 
damaging  all  nations  more  or  less  by  the  state  of  uneasiness  and 
apprehension  into  which  an  outbreak  of  hostilities  throws  the 
entire  commercial  world. 

Let  us  not  confuse  this  subject  with  that  of  contraband — 
that  stands  on  a  different  footing.  Every  belligerent  nation 
must  have  the  right  to  prevent  its  enemies  from  being  supplied 
with  arms,  munitions,  and  other  miHtary  supplies;  that  may 
be  said  to  be  a  sine  qua  non  of  war.  What  we  are  considering 
here  is  the  forcible  appropriation  of  private  property  clearly  not 
contraband  in  character;  as,  for  instance,  the  ordinary  goods, 
wares,  and  merchandise  of  peaceable  merchants  engaged  in 
their  regular  mercantile  pursuits. 

When  Benjamin  Franklin  was  acting  as  one  of  the  American 

plenipotentiaries  to  negotiate  treaties  with  European  powers, 

he  said : 

"There  are  three  employments  which  I  wish  the  law  of  nations 
would  protect,  so  that  they  should  never  be  molested  or  interrupted 
by  enemies  even  in  time  of  war;  I  mean  farmers,  fishermen,  and 
merchants;  because  their  employments  are  not  only  innocent,  but 
for  the  common  subsistence  and  benefit  of  the  human  species  in 
general."     (Letter  to  Mr.  Wendorp,  Franklin's  Works,  Vol.  9,  p.  41.) 

In  1783  he  transmitted  to  one  of  the  Enghsh  Commissioners 
a  paper  containing  "A  proposition  for  improving  the  law  of 
nations,  by  prohibiting  the  plundering  of  unarmed  and  usefully 
employed  people."  In  it  he  speaks  of  the  "practice  of  robbing 
merchants  on  the  high  seas,"  as  "a  remnant  of  ancient  piracy." 
He  proposes  that  "all  merchants  or  traders  with  their  unarmed 


PAPER   OF   MR.    FINKELNBURG  241 

vessels,  employed  in  commerce,  exchanging  the  products  of 
different  places,  and  thereby  rendering  the  necessaries,  con- 
veniences, and  comforts  of  human  life  more  easy  to  obtain  and 
more  general,  shall  be  allowed  to  pass  freely,  unmolested." 
(Franklm's  Works,  Vol.  9,  pp.  466-467.) 

Franklin  succeeded  in  having  these  principles  recognized 
and  inserted  in  our  first  treaty  with  Prussia  (1785),  and  this,  so 
far  as  I  have  been  able  to  discover,  was  the  first  definite  recog- 
nition of  the  immunity  of  private  property  in  any  treaty 
between  nations. 

Since  Franklin's  time  the  position  of  the  United  States  on 
this  subject  has  been  clear  and  consistent.  In  1823  President 
Monroe  submitted  a  proposition  to  abohsh  war  upon  private 
property  at  sea,  to  the  ruling  powers  of  Europe.  In  submitting 
it,  John  Quincy  Adams,  Secretary  of  State,  said : 

"  The  principle  upon  which  the  Government  of  the  United  States 
now  offers  this  proposal  to  the  civilized  world  is,  that  the  same  pre- 
cepts of  justice,  of  charity,  and  of  peace,  under  the  influence  of 
which  Christian  nations  have,  by  common  consent,  exempted  private 
property  on  shore  from  the  destruction  or  depredation  of  war, 
require  the  same  exemption  in  favor  of  private  property  upon  the 
sea."     (Adams  to  Middlelon,  1823,  Wharton,  Vol.  3,  p.  261.) 

In  1854  President  Pierce  declared  himself  in  favor  of  the 
principle  in  one  of  his  annual  messages  to  Congress.  We  come 
next  to  an  important  epoch  in  the  development  of  international 
law,  the  Declaration  of  Paris  of  1856.  By  an  agreement  among 
nearly  all  the  maritime  nations  of  Europe,  a  number  of  trouble- 
some questions  were  settled  in  the  interests  of  peace  and  com- 
merce, and  the  rights  of  neutrals  wTre  estabhshed  on  a  more 
liberal  basis  by  exempting  their  property  from  capture,  though 
found  on  an  enemy's  ship,  and  by  exempting  an  enemy's  prop- 
erty when  found  on  a  neutral  ship.  This  removed  several 
vexatious  questions  from  international  disputes,  and  gave  a  new 
and  firmer  basis  to  commerce  in  time  of  war.  But  in  addition 
to  this  the  signatory  powers  declared  that  privateering  should 
be  abohshed.  This  was  a  significant  step,  and  its  logical  se- 
quence was  the  entire  immunity  of  private  property  from  capture. 


242      CONGRESS   OF   LAWYERS   AND    JURISTS 

The  United  States  Government  so  regarded  it.  When  invited  to 
join  in  this  declaration,  Mr.  Marcy,  then  Secretary  of  State, 
wrote  his  celebrated  reply  to  the  Count  de  Sartiges,  the  French 
Minister,  from  which  1  quote  as  follows: 

"The  reasons  which  induced  the  Congress  at  Paris  to  declare 
privateering  abolished  are  not  stated,  but  they  are  presumed  to  be 
only  such  as  are  usually  urged  against  the  exercise  of  that  belligerent 
right. 

"The  prevalence  of  Christianity  and  the  progress  of  civilization 
has  greatly  mitigated  the  ancient  mode  of  prosecuting  hostilities. 
War  is  now  an  affair  of  governments.  It  is  the  public  authority 
which  makes  and  carries  on  war;  individuals  are  not  permitted  to 
take  part  in  it,  unless  authorized  to  do  so  by  their  governments.  It 
is  a  generally  received  rule  of  modern  warfare,  so  far  at  least  as 
operations  upon  land  are  concerned,  that  the  persons  and  effects  of 
non-combatants  are  to  be  respected.  The  wonted  pillage  and 
uncompensated  appropriation  of  individual  property  by  armies, 
even  in  possession  of  an  enemy's  country,  is  against  the  usage  of 
modern  times.  Such  a  mode  of  proceeding  at  this  date  would  be 
condemned  by  the  enlightened  judgment  of  the  world,  unless  war- 
ranted by  special  circumstances.  Every  consideration  which  upholds 
this  sentiment,  in  regard  to  the  conduct  of  war  on  land,  favors  the 
apphcation  of  the  same  rule  to  the  persons  and  property  of  citizens 
of  the  belligerents  found  upon  the  ocean. 

"It  is  fair  to  presume  that  the  strong  desire  to  ameliorate  the 
severe  usages  of  war  by  exempting  private  property  upon  the  ocean 
from  seizure,  to  the  extent  it  is  usually  exempted  on  land,  was  the 
chief  inducement  which  led  to  the  'Declaration'  by  the  Congress  at 
Paris,  that  'privateering  is,  and  remains,  abolished.' 

"The  undersigned  is  directed  by  the  President  to  say  that  to  this 
principle  of  exempting  private  property  upon  the  ocean,  as  well  as 
upon  the  land,  applied  without  restriction,  he  yields  the  most  ready 
and  willing  assent.  The  undersigned  cannot  better  express  the  Presi- 
dent's views  upon  the  subject  than  by  quoting  the  language  of  his 
Annual  Message  to  Congress  of  December  4,  1854." 

After  quoting  the  President  at  some  length,  he  continues: 

"The  President,  therefore,  proposes  to  add  to  the  first  proposition 
in  the  declaration  of  the  Congress  at  Paris  the  following  words:  '  And 
that  the  private  property  of  subjects  and  citizens  of  a  belligerent  on 
the  high  seas  shall  be  exempt  from  seizure  by  pubHc  armed  vessels 
of  the  other  belligerent,  except  it  be  contraband.'  Thus  amended, 
the  Government  of  the  United  States  will  adopt  it,  together  with  the 
other  three  principles  contained  in  that  declaration." 


PAPER    OF   MR.    FTNKELNBURG  243 

Russia  not  only  approved  the  proposed  amendment,  but 
promised  to  co-operate  in  endeavoring  to  obtain  the  assent  of 
other  powers.  (See  President  Pierce's  message  of  1856.)  It  is 
understood  that  the  French,  Prussian,  Itahan,  and  Netherlands 
governments  likewise  expressed  to  the  American  ministers  their 
willingness  to  have  the  American  amendment  adopted.  (See 
Dana's  Wheaton,  §358.)  But  it  required  the  unanimous  con- 
sent of  all  who  had  signed,  and  that  assent  could  not  be  obtained. 

In  a  recent  decision,  the  United  States  Supreme  Court, 
speaking  through  Mr.  Justice  Peckham,  said: 

"It  is,  we  think,  historically  accurate  to  say  that  this  Government 
has  always  been,  in  its  views,  among  the  most  advanced  of  the 
governments  of  the  world  in  favor  of  mitigating  as  to  all  non-com- 
batants, the  hardships  and  horrors  of  war.  To  accomplish  that 
object,  it  has  always  advocated  those  rules  which  would  in  most 
cases  do  away  with  the  right  to  capture  the  private  property  of  an 
enemy  on  the  high  seas."  (The  Biiena  Ventura  v.  United  States, 
175  U.  S.,  p.  384.) 

In  the  Austro-Prussian  War  of  1866,  the  principle  of  inviola- 
bihty  was  adopted  by  both  parties,  and  Germany  proclaimed 
the  same  principle  in  the  Franco-Prussian  War  without  recip- 
rocal action  on  the  part  of  France. 

The  Hanseatic  cities  of  Hamburg  and  Bremen  had  taken 
strong  ground  in  favor  of  the  amendment  prior  to  their  incor- 
poration with  the  German  Empire.  The  resolutions  adopted  by 
the  Bremen  Chamber  of  Commerce,  December  22,  1859,  con- 
tained the  following: 

"  That  the  inviolability  of  person  and  property  in  time  of  war  on 
the  high  seas  (extended  also  to  the  subjects  and  citizens  of  belligerent 
states,  except  so  far  as  the  operations  of  war  necessarily  restrict  the 
same)  is  imperatively  demanded  by  the  sentiments  of  justice  uni- 
versally entertained  at  the  present  day." 

In  1 87 1  a  treaty  was  entered  into  between  the  United  States 
and  Italy  which  embodies  the  principle  of  immunity  between  the 
subjects  and  citizens  of  these  two  countries.  This  treaty  is  now 
in  force. 

And  finally  the  principle  of  immunity  as  a  general  amend- 


244     CONGRESS   OF   LAWYERS  AND   JURISTS 

ment  to  international  law  was  urged  upon  The  Hague  Peace 
Conference  of  1899,  where  it  was  ably  advocated  by  Ambassador 
White  on  behalf  of  the  United  States  and  cordially  supported 
by  Count  Nigra  on  behalf  of  Italy;  but  the  subject  not  being 
within  the  scope  of  the  call  under  which  the  Conference  assem- 
bled, and  most  of  the  Delegates  being  without  instruction  on 
the  subject,  it  was  recommended  for  consideration  to  a  future 
conference  to  be  especially  called  for  that  purpose. 

President  Roosevelt  has  recommended  the  calhng  of  such 
a  conference,  in  a  recent  message,  and  in  doing  so,  uses  the 
following  forceful  language: 

"I  advocate  this  as  a  matter  of  humanity  and  morals.  It  is 
anachronistic  when  private  property  is  respected  on  land  that  it 
should  not  be  respected  at  sea.  Moreover,  it  should  be  borne  in 
mind  that  shipping  represents,  internationally  speaking,  a  much  more 
generalized  species  of  private  property  than  is  the  case  with  ordinary 
property  on  land — that  is,  property  found  at  sea  is  much  less  apt 
than  is  the  case  with  property  found  on  land  really  to  belong  to  any 
one  nation.  Under  the  modern  system  of  corporate  ownership,  the 
flag  of  a  vessel  often  differs  from  the  flag  which  would  mark  the 
nationahty  of  the  real  ownership  and  money  control  of  the  vessel; 
and  the  cargo  may  belong  to  individuals  of  yet  a  difi'erent  nationality. 
Much  American  capital  is  now  invested  in  foreign  ships;  and  among 
foreign  nations  it  often  happens  that  the  capital  of  one  is  largely 
invested  in  the  shipping  of  another.  Furthermore,  as  a  practical 
matter,  it  may  be  mentioned  that  while  commerce-destroying  may 
cause  serious  loss  and  great  annoyance,  it  can  never  be  more  than  a 
subsidiary  factor  in  bringing  to  terms  a  resolute  foe.  This  is  now 
well  recognized  by  all  of  our  naval  experts.  The  fighting  ship,  not 
the  commerce  destroyer,  is  the  vessel  whose  feats  add  renown  to  a 
nation's  history,  and  estabhsh  her  place  among  the  great  powers  of 
the  world." 

Let  us  hope  that  after  the  present  war  is  over,  such  a  con- 
ference may  be  called  together,  and  that  one  of  the  first  achieve- 
ments of  the  new  century  will  be  the  abohtion  of  this  heritage  of  a 
ruder  period,  when  the  suspension  of  all  property  rights  was 
considered  a  necessary  incident  to  international  warfare. 

Now,  Mr.  President  and  Gentlemen,  I  am  aware  that  the 
views  which  I  have  endeavored  to  express  in  this  paper  are  not 
in  accord  with  the  views  of  those  who  beheve  in  the  rigid  school 


CHEVALIER   VON   STIBRAL  245 

of  war;  they  are  not  in  accord  with  the  present  state  of  the  law 
of  war;  but  standing  here,  as  we  do,  upon  ground  dedicated,  nay, 
I  might  say,  consecrated,  to  the  highest  achievements  of  peace, 
I  think  it  is  a  fitting  and  opportune  moment  and  place  to  plead 
for  the  further  amelioration  of  the  rigors  of  war,  and  in  that 
behalf  to  invite  the  softening  influence  of  modern  civiHzation. 
[Applause.] 

The  Acting  President: 

I  will  now  ask  Chevaher  Adalbert  von  Stibral  of  Vienna, 
Austria,  to  address  the  Congress. 

Adalbert  Ritter  von  Stibral  of  Vienna,  Austria,  a 
Delegate-at-large : 

Mr.  President  and  Gentlemen :  I  am  sure  of  expressing  the 
general  sentiment  of  all  who  have  listened  to  Judge  Finkeln- 
burg's  address  in  congratulating  him  upon  the  very  able,  clear, 
and  lucid  statement  which  he  has  given  us,  and  to  which  we  have 
listened  with  the  greatest  interest.  Indeed,  it  is  very  diflficult 
to  say  much  more  on  the  subject  than  he  has  said.  Preliminary 
to  the  few  remarks  which  I  may  venture  to  offer,  you  will, 
perhaps,  allow  me  to  explain  my  personal  position.  Being  a 
government  official,  you  might  beheve  that  I  am  speaking  in  an 
official  capacity.  That  is  not  the  case.  I  am  speaking  as  a 
private  individual  here.  I  know  nothing  of  the  intention  of  my 
government  on  the  subject  in  question,  and  cannot  say,  as  once 
a  member  of  ParHament  did,  that  he  did  not  know  the  intentions 
of  his  government,  but  he  disapproved  them.  Not  knowing  the 
intentions  of  my  government,  I  am  perfectly  sure  that  they  are 
all  right. 

I  think  Judge  Finkelnburg  has  shown  very  well,  indeed,  that 
the  confiscation  of  private  property  on  the  high  seas  is  a  survival 
from  a  state  of  things  which,  in  all  other  respects,  has  ceased  to 
exist,  and  he  has  shown  us  that,  even  in  respect  to  this  matter, 
there  is  a  general  tendency  now  to  proclaim  the  inviolability  of 
private  property  on  the  high  seas  as  it  is  recognized  on  land.    If 


246     CONGRESS   OF   LAWYERS   AND   JURISTS 

this  principle  has  not  yet  received  universal  recognition,  the 
reason  for  it,  I  think,  is  not  alone  historical,  and  it  might,  per- 
haps, be  interesting  to  investigate  more  closely  the  points  where 
the  difference  comes  in.  I  am  afraid,  however,  that  even  if  I 
were  able  to  do  so,  I  should  not  have  the  time  to  enter  more 
closely  into  the  matter  and  to  show  you  what  motives  of  expedi- 
ency have  intiuenced  the  powers  not  yet  to  establish  this  prin- 
ciple in  a  universal  way.  It  is  absolutely  sure  that  by  inflicting 
losses  on  the  commerce  of  your  adversary  on  the  sea,  you  do  him 
a  considerable  damage,  you  weaken  his  resources.  It  may  be,  in 
most  cases,  as  Judge  Finkelnburg  has  said,  that  this  will  have 
no  decisive  influence  on  the  results  of  the  war;  nevertheless,  you 
are  able  to  damage  him,  and  in  consequence  of  the  natural  condi- 
tions of  trade  on  the  sea,  you  can  do  it  in  a  way  which  is  not 
open  to  those  apparent  difficulties  which  the  confiscation  of 
private  property  on  land  would  bring  about.  It  is  evident  that 
by  the  confiscation  of  property  of  subjects  of  a  foreign  country, 
by  letting  loose  soldiers  to  loot  cities  and  plunder  peasants,  you 
completely  disorganize  the  army,  and  you  do  to  yourself  a  greater 
harm,  perhaps,  than  to  the  enemy.  The  same  cannot  be  said 
of  the  confiscation  of  property  on  the  sea,  where  it  can  be  done 
under  certain  forms  which  I  might  liken  to  a  form  of  justice,  if 
that  word  is  appropriate  here. 

I  think,  perhaps,  there  is  a  second  consideration  which  may 
serve  to  explain  why  the  principle  of  the  inviolability  of  property 
on  the  seas  has  not  been  universally  recognized.  Certainly  it 
is  very  important  for  any  belligerent  to  control  that  no  contra- 
band is  carried  to  the  enemy's  country,  or  by  the  enemy's  ships, 
and,  furthermore,  a  belligerent  will  not,  I  think,  easily  renounce 
the  exercise  of  the  right  of  blockade.  In  both  cases,  of  course, 
the  risk  for  blockade  breakers,  or  carriers  of  contraband,  is  much 
lessened  if  private  property  is  declared  inviolate,  whereas,  in 
the  case,  if  you  make  it  extremely  dangerous  to  carry  on  com- 
merce under  the  flag  of  the  country  with  which  you  are  at  war, 
it  will  be  that  much  more  risky  to  undertake  the  business  if  the 
other  belligerent  is  tr\'ing  to  suppress  it. 


MR.    EVERETT    P.    WHEELER  247 

There  may  perhaps  be  some  other  motives  yet  why  the  powers 
have  not  consented  to  make  an  end  of  the  confiscation  of 
private  property  on  the  sea ;  but  even  these  considerations  show 
that  this  is  a  matter  which  might  be  settled,  which  ought  to  be 
settled,  by  international  agreement,  and  I  think  the  direction 
of  modern  ideas  concerning  the  way  of  conducting  war  is  so 
clear  and  unmistakable  that  we  can  hardly  have  reasonable 
doubt  of  the  end  which  Mr,  Finkelnburg  has  advocated  being 
finally  attained.  And  finally,  if  I  may  say  this  as  my  personal 
impression,  is  it  not  a  curious  thing  what  an  immense  amount 
of  effort  is  taken  nowadays  to  restrict  the  evils  of  war,  and  what 
a  good  thing  it  would  be  if  all  this  jurisprudence  of  war  could 
disappear  altogether  by  the  disappearance  of  war  itself.  [Ap- 
plause.] 

The  Acting  President  : 

I  will  now  ask  Mr.  Everett  P.  Wheeler,  of  the  New 
York  Bar,  to  address  the  Congress. 

Mr.  Everett  P.  Wheeler  of  New  York,  a  Delegate 
from  the  United  States  Government : 

Mr.  President  and  Members  of  the  Congress :  I  have  listened 
with  the  greatest  interest  to  the  paper  of  Mr.  Finkelnburg,  and 
to  the  address  of  Chevalier  Adalbert  von  Stibral.  One  point 
I  want  to  make,  supplementary  to  what  they  have  said,  but  car- 
r}'ing  forward  their  line  of  argument.  My  proposition  is  that  the 
right  of  seizure  of  private  property  of  beUigerents  does  not  tend 
to  promote  the  successful  issue  of  war,  but  rather  tends  to  defeat 
it.  What  the  present  law  does  is  to  put  the  greatest  possible 
temptation  before  a  naval  officer.  It  does  exactly  what  the  old 
right  of  seizure  of  private  property  on  land  did  to  the  com- 
mander. Review  the  history  of  war,  and  you  will  find  that  the 
right  of  plunder  was  always  an  injur}^  to  the  army.  You  will 
remember  not  only  from  history,  but  from  poetry,  when  the 
Scottish  army  on  the  field  of  Flodden  had  beaten  a  part  of  the 
Enghsh  army,  that  instead  of  attacking  the  centre,  as  they  should 


248     CONGRESS   OF   LAWYERS  AND   JURISTS 

have  done,  they  went  to  plundering  the  tents.  This  allowed  the 
English  to  reorganize  and  overpower  the  remnants  of  the  Scot- 
tish army.  Coming  down  later,  those  who  have  read  Mahan's 
Life  of  Lord  Nelson  know  how  bitterly  Lord  Nelson  complained 
of  some  fellow-admirals,  who  were  more  intent  on  capturing 
rich  merchantmen  coming  home  from  the  West  Indies  than 
they  were  to  meet  and  defeat  the  French  fleet.  On  land  the 
British  army  was  demoralized  by  the  sack  of  Badajoz. 

It  is  often  said  that  the  more  terrible  war  is  made,  the  more 
infrequent  it  will  be.  Those  who  bring  forward  this  argument 
forget  their  Shakespeare. 

"You  take  my  life  when  you  do  take  the  means  by  which  I  live." 

They  also  forget  their  history. 

Centuries  ago  prisoners  taken  in  war  were  sold  into  slavery, 
towns  were  plundered,  crops  destroyed,  women  ravished.  The 
Thirty  Years'  War  left  whole  provinces  a  desert.  Germany 
did  not  recover  from  its  ravages  for  a  century.  All  this,  as 
Napier  says  (who  knew  it  from  long  experience),  "hardens  the 
vulgar  spirit."  This  brutalizing  of  the  soldier  made  wars 
more  frequent.  Nations  engaged  in  them  on  the  least  pretext. 
During  the  past  century  the  laws  of  war  have  become  more 
humane.  Plunder  on  land  is  prohibited.  The  persons  of  non- 
combatants  are  entitled  to  protection.  Prisoners  are  well 
treated  and  are  exchanged.  Occasional  violations  of  these 
humane  laws  are  looked  upon  with  horror.  But  the  whole 
machinery  of  war  is  more  effective  than  ever.  Wars  have  be- 
come less  frequent  and  when  they  do  come  are  "short,  sharp, 
and  decisive." 

All  experience  shows  that  the  object  of  war  can  best  be 
accomphshcd  on  land  by  defeating  and  capturing,  if  possible, 
the  enemies'  armies,  and  on  the  sea  by  overwhelming  his  fleet. 
A  recent  instance  that  occurred  during  the  Spanish  war  will 
illustrate,  perhaps  better  than  any  argument,  the  truth  of  my 
proposition.  The  American  forces  besieged  Santiago.  Not  only 
at  sea  did  our  fleet  blockade  it,  but  the  city  was  beleaguered  from 


MR.    EVERETT   P.   WHEELER  249 

land,  and  the  American  forces  had  already  taken  the  neighbor- 
ing port  of  Guantanamo.  The  American  commander  had 
given  notice  to  the  inhabitants  to  leave  the  city  of  Santiago, 
because  a  bombardment  was  intended.  There  were  at  that 
period  in  Santiago  more  than  one  thousand  persons  who  were 
not  Spanish  citizens.  Among  them  was  the  British  consul, 
one  of  the  best  and  noblest  of  men,  who  did  more,  let  me  say, 
for  American  citizens  in  Cuba  than  any  American  resident  ever 
did.  He  was  there,  and  his  wife  and  children  were  there. 
There  were  many  non-combatants,  men,  women,  and  children, 
people  of  wealth,  who  had  everything  but  the  necessaries  of  lif^ 
and  the  American  troops  had  given  them,  in  effect,  orders  to 
leave  the  city.  A  British  ship-owner  in  Jamaica,  which  is  only 
a  few  hours'  distant,  sought  to  take  advantage  of  this  opportunity 
to  furnish  these  non-combatants  with  the  means  of  escape  to 
that  neighboring  friendly  island.  His  vessel  started  from 
Jamaica,  went  to  the  port  of  Guantanamo,  and  asked  permission 
to  go  to  Santiago  and  to  take  away  those  non-combatants.  The 
naval  commander  should  have  said:  "Go,  by  all  means  to 
Santiago  and  take  them  away.  Our  troops  have  given  them 
notice  to  go,  and  we  want  them  away.  We  have  neither  food 
nor  shelter  for  them,  and  for  God's  sake  take  them."  That  is 
what  he  would  have  done  if  he  had  had  an  eye  single  to  the  suc- 
cess of  the  military  operations  against  Santiago.  But,  on  the 
other  hand,  the  law  held  up  before  him  the  opportunity  to  add 
to  his  prize  money.  So  he  took  possession  of  the  vessel,  as  the 
Supreme  Court  held  (four  judges  dissenting)  he  had  the  legal 
right  to  do.'  He  sent  it  to  Savannah,  and  one  thousand 
neutrals  were  left  at  Santiago.  In  the  hot  July  sun  they 
wandered,  some  of  them  with  infants  in  their  arms,  some 
women  in  feeble  health,  with  feet  torn  and  bleeding,  to  the 
American  camp.  What  could  he  do  with  them?  We  had 
hardly  provisions  for  our  troops.  They  were  on  short  rations. 
Many  of  these  neutrals  lost  their  lives  on  account  of  the  una- 
voidable failure  of  our  army  to  care  for  them.     Yet,  in  the  harbor 

^  The  Adula,  176  U.  S.  Rep.,  361. 


250     CONGRESS   OF   LAWYERS   AND   JURISTS 

of  Guantanamo,  only  fifteen  miles  distant,  was  a  British  vessel 
with  an  owner  anxious  to  take  them  away,  but  the  prize  law  was 
such  that  this  offer,  I  will  not  say  kindly  (although  it  was  a  kindly 
and  friendly  offer),  but  this  helpful  offer  to  our  military  expedi- 
tion was  not  accepted.  You  can  study  the  history  of  the  world 
in  its  military  and  in  its  naval  operations  and  you  will  find  that 
the  law  of  plunder,  the  law  of  loot,  is  an  obstacle  to  the  effective- 
ness of  all  military  or  naval  operations. 

Allow  me  one  more  illustration.  Look  for  a  moment  at  the 
history  of  the  American  Civil  War.  It  is  admitted  now,  though 
those  of  us  who  lived  through  the  war  can  remember  grave 
doubts  on  that  subject,  that  on  the  Northern  side  Grant  was  the 
greatest  commander.  His  proposition  was,  "It  is  not  Rich- 
mond that  I  am  after,  it  is  Lee's  army.  The  capture  of  Rich- 
mond is  nothing;  the  point  is  to  strike  and,  if  possible,  to 
capture  or  annihilate  Lee's  army." 

We  had  another  great  general,  who  made  the  famous  march 
to  the  sea.  It  was  a  famous  march  and  he  was  a  great  general, 
yet  I  must  say  what  the  march  was  in  a  few  words.  It  was  not 
so  much  the  destruction  of  an  army,  as  a  great  swath  cut  through 
the  country  by  the  destruction  of  private  property,  the  burning 
of  school-houses  and  churches  and  private  residences.  Did 
that  destruction  tend  for  a  moment  to  hasten  the  end  of  the  war? 
Not  at  all.  Did  it  tend  for  a  moment  to  hasten  the  hour  when 
Lee  surrendered  at  Appomattox?  No,  but  it  left  behind  a 
woeful  heritage,  a  smarting  sense  of  injustice  and  cruelty  that  has 
taken  years  to  eradicate.  War  is  the  same  on  land  and  on  sea. 
When  General  Sherman  said  "War  is  hell,"  he  had  reason  to 
say  that  it  was,  for  that  is  the  war  he  waged.  On  the  other  hand, 
it  was  said  of  C/ESAr  that  he  treated  his  enemies  as  if  he  expected 
them  to  be  his  friends.  And  in  modern  times  Lord  Bacon 
said:  "Wars  are  not  massacres  and  confusions,  but  the  highest 
trials  of  right."  When  war  is  put  on  that  basis,  and  we  spare 
not  only  the  persons  of  men,  women,  and  children,  but  the 
property  of  peaceful  merchants,  then  we  eliminate  the  element 
of   private  brutality  and  private  greed,  and  shall  have  done 


MR.    MOORFIELD    STOREY  251 

just    so    much    to    prevent    war    and    promote    arbitration. 
[Applause.] 

The  Acting  President  : 

Mr.  MooRFiELD  Storey  of  Massachusetts,  who  has  sent  us 
his  card,  will  give  us  the  benefit  of  his  views. 

Mr.  MooRFiELD  Storey  of  ]Massachusetts,  a  Delegate 
of  the  United  States  Government: 

Mr.  Chairman  and  Gentlemen:  You  will  observe  that  yes- 
terday the  Committee  of  Nations  did  not  report  favorably  the 
resolution  which  had  been  submitted  by  Judge  Finkelnburg, 
and  it  is,  perhaps,  appropriate  that  the  reasons  for  that  action 
should  be  briefly  indicated  by  me. 

It  is  impossible  to  discuss  this  question  on  the  theory  that 
war  is  humane  or  Christian.  There  is  nothing  about  it  that  can 
be  squared  w'ith  any  of  the  doctrines  of  Christ.  As  Sidney 
Smith  has  well  said,  "In  war  God  is  forgotten."  The  suggestion 
of  Judge  Finkelnburg  and  the  doctrine  which  he  has  stated,  is 
that  it  is  cruel  and  inhumane,  a  barbarous  thing,  to  destroy  the 
property  of  non-combatants.  I  agree  with  him.  Is  it  humane 
and  Christian  to  take  the  fives  of  men  who  are  drafted  into  the 
army,  men  who  have  no  grudge  whatever  against  the  opposing 
force  ?  In  other  words,  is  it  humane  and  Christian  to  take  fife 
and  not  to  destroy  property  ?    x\re  dollars  more  sacred  than  men  ? 

Now,  the  assumption  seems  to  be  that  in  war  private  property 
on  land  is  exempt  from  attack.  Is  it  so?  During  the  Civil 
War  every  bale  of  cotton  that  we  succeeded  in  getting,  which 
belonged  to  the  enemy,  was  either  confiscated  or  destroyed, 
and  when  we  did  it  we  weakened  the  fighting  force  of  the  enemy. 
When  Sherman  made  his  march  to  the  sea,  and  made  that 
broad  swath,  he  destroyed  the  food  on  which  their  armies  de- 
pended for  continuing  the  contest.  Three  or  four  years  ago 
the  so-called  Christian  nations  of  the  world  made  an  attack  on 
China.  They  did  not  call  it  war;  they  called  it  a  punitory  expe- 
dition, and  when  they  reached  Tientsin  they  saw  between  them 


252      CONGRESS   OF  LAWYERS  AND   JURISTS 

and  Pekin  a  plain  covered  with  a  contented,  industrious,  happy 
population,  with  crops  and  houses,  saw  ever}'thing  that  be- 
longed to  civihzed  hfe,  and  when  the  expedition  had  passed  over 
it  they  left  nothing  but  a  waste,  rivers  choked  with  the  dead 
bodies  of  non-combatants,  crops,  houses,  and  everything  de- 
stroyed. The  other  day  our  forces  were  trying  to  put  down  an 
insurrection  in  the  Philippine  Islands,  and  in  order  to  deal  with 
a  class  of  people  who  were  peaceful  citizens  in  the  morning,  but 
enemies  in  the  evening,  they  made  of  Samar  a  waste  in  which 
not  even  a  bird  could  hve.  They  took  the  inhabitants  of  that 
whole  region  and  brought  them  together  in  small  villages,  and 
they  destroyed  the  houses  and  property  which  they  could  not 
carry.  Private  property  is  not  respected  by  the  great  powers 
of  this  world,  and  it  is  destroyed  for  the  reason  that  by  that  any 
resistance  of  the  nation  is  most  effectually  broken  down. 

War,  as  I  say,  from  the  beginning  is  unchristian;  it  is  an 
attempt  of  one  nation,  by  force,  to  make  another  submit  to  its 
will,  and  you  wish  to  attack  the  most  vulnerable  part  of  the  re- 
sisting nation.  What  was  it,  at  a  very  critical  period  of  our 
Civil  War,  that  protected  us  from  an  encounter  with  England  ? 
Was  it  not  the  fact  that  the  large  oceans  of  this  world  were 
covered  with  British  commerce,  and  that  the  United  States  had 
reserved  the  right  to  take  private  property  on  the  ocean,  and  the 
citizens  of  Great  Britain  appreciated  perfectly  well  that  in  the 
event  of  war  American  privateers  would  cover  the  ocean  and 
their  commerce  would  be  taken  away?  That  may  or  may  not 
have  been  the  decisive  consideration,  but  it  was  one  considera- 
tion which  undoubtedly  weighed  with  a  great  many  people. 

They  tell  us  that  war  is  an  affair  of  nations,  but  nations  are 
composed  of  individuals,  and  we  want  the  individuals,  the 
owners  of  private  property  in  any  nation  that  is  proposing  to 
go  to  war,  to  recognize  the  fact  that  war  will  cost  them  money 
and  cost  them  property,  and  when  that  proposition  is  brought 
home  clearly  to  them  you  have  established  in  their  midst  a 
sentiment  against  it,  for  men  are  not  disposed  to  go  to  war  if  it 
is  going  to  cost  them  something.     Many  men  may  stand  up  and 


MR.    G.    S.    ROBERTSON  253 

make  strong  war  speeches  when  the  people  are  excited,  and  some 
men  are  very  anxious  that  other  men  shall  go  to  war  and  that 
other  people's  property  shall  be  affected,  but  if  you  are  going  to 
war  let  every  man  understand  that  he  has  something  at  stake. 
I  do  not  consider  it  Christian  or  humane  to  say  to  the  people  of 
Germany  or  England,  "If  you  go  to  war  with  us  you  may  des- 
troy our  army,  but  you  must  not  touch  anything  in  the  city  of  New 
York."  As  between  dollars  and  men,  I  plead  for  men.  [Ap- 
plause.] As  between  the  burning  of  houses,  the  destruction  of 
private  property,  and  the  carrying  off  of  a  whole  generation  of 
youth,  I  think  the  burden  of  war  should  fall  on  the  pocket  and 
not  on  the  heart. 

I  am  distinctly  opposed  to  war  of  any  kind.  I  agree  with 
Franklin  that,  "There  never  was  a  good  war  and  never  was  a 
bad  peace."  I  believe  no  result  in  the  history  of  war  has  been 
accomplished  by  war  that  could  not  have  been  better  accom- 
pUshed  without  it;  therefore,  I  want  to  oppose  war  by  every- 
thing that  can  be  done.  I  do  not  want  the  citizens  of  a  great 
country  to  feel  that  they  can  go  out  among  the  farmers  of  the 
country  and  say,  "Give  me  your  sons,  but  our  pockets  are  to  be 
exempt  from  contribution."  If  we  are  to  have  war,  let  it  fall 
on  the  material  resources  of  the  country.  You  cannot  bring 
people  to  peace  as  quickly  by  kilhng  as  you  can  by  destroying 
their  resources,  and  for  that  reason  I  am  not  inchned  to  pass  this 
resolution. 

It  tends  to  reduce  war  to  a  gladiatorial  show,  like  a  foot-ball 
game,  instead  of  making  every  man  in  the  nation  feel  the  effect 
of  it.     [Applause.] 

The  Acting  President  : 

We  will  now  listen  to  Mr.  George  S.  Robertson,  Barris- 
ter-at-law,  of  London,  England. 

Mr.  George  S.  Robertson,  a  Delegate  from  the  Gen- 
eral Council  of  the  Bar  of  England: 

Mr.  President  and  Gentlemen:    I  feel  a  difficulty  in  stating 


254     CONGRESS   OF   LAWYERS  AND   JURISTS 

my  position  here.  You  remember  the  story  of  the  soldier  in 
the  Civil  War — I  will  not  say  which  side  he  was  fighting  on — 
who,  as  he  was  about  to  go  into  battle,  saw  a  rabbit  running 
away  from  the  hne  of  battle,  and  said,  "If  I  had  no  more  repu- 
tation to  lose  than  you  have,  I  would  run  too."  As  I  seem  to 
be  the  only  surviving  representative  among  the  Delegates  from 
the  nation  which  feels  the  greatest  interest  in  the  right  to  seize 
private  property  in  the  time  of  war — I  mean  England,  of  course 
— I  think  I  ought  to  make  a  remark  or  two. 

Whatever  we  may  think  about  the  principle  enunciated  in 
Judge  Finkelnburg's  paper,  I  cannot  help,  from  my  bringing 
up,  being  very  much  opposed  to  it.  It  seems  his  view  of  it  is 
this:  Judge  Finkelnburg  did  not  suggest  for  a  moment  that 
private  property  which  was  contraband  of  war  should  be  exempt 
from  capture.  Therefore,  you  have  to  define  contraband  of 
war.  If  you  discuss  the  question  without  defining  contraband 
of  war,  you  are  working  in  a  circle,  which  reminds  me  of  the 
miracle  play  where  they  build  a  stage  and  you  will  find  Adam 
there  waiting  to  be  created.  [Laughter.]  Well,  gentlemen, 
Judge  Finkelnburg's  proposition  stands  on  what  is  to  be 
created  on  the  doctrine  on  what  contraband  of  war  is.  The  text- 
books say  that  certain  articles  are  contraband  of  war,  and  there 
are  certain  other  articles  which  a  beUigerent  party  may  define 
at  the  commencement  of  the  war  to  be  contraband  or  not. 
In  the  present  war,  Japan  and  Russia  gave  a  Hst  of  articles 
that  were  contraband  of  war.  If  it  is  a  principle  of  law  that 
the  belligerents  will  determine  what  is  contraband,  then,  unless 
other  nations  determine  that  they  are  contraband,  nothing  is 
settled.  I  do  not  see  much  force  in  the  proposition  that  private 
property  should  be  respected  because  it  has  to  be  left  to  the  pow- 
ers to  determine  what  is  contraband,  and,  therefore,  anything 
which  determines  what  is  contraband  of  war  is  rather  insuffi- 
cient. If  you  are  prepared  to  say  that  all  private  property  is 
exempt  unless  it  is  contraband,  that  is  not  sufficient,  and  then, 
again,  the  proposition  may  be  a  reasonable  one,  but  there  is 
this  difficulty :  if  the  powers  are  not  of  equal  strength — because 


AN    INTERNATIONAL    BAR   ASSOCIATION    255 

there  are  strong  powers  and  weak  powers  that  go  to  war — and 
it  seems  to  be  quite  impossible  that  any  proposition  will  be 
accepted  in  regard  to  what  is  contraband  of  war,  because  the 
weak  one  will  insist  that  certain  articles  are,  and  the  stout  one 
will  say  that  other  articles  are.  It  will  be  like  the  time  when  a 
duck  and  a  horse  were  occupying  the  same  stall,  and  the  duck 
said  to  the  horse,  "I  am  afraid  of  being  trod  on.  Let  us  fix  it  up. 
I  will  not  tread  on  your  toes  if  you  will  not  tread  on  mine."  The 
weaker  powers  desire  to  exempt  private  property  from  seizure, 
and  you  cannot  expect  England,  which  may  be  said  to  be  the 
horse,  to  agree  to  that  proposition.     [Laughter  and  applause.] 

The  Acting  President: 

There  being  opportunity  for  no  further  discussion  of  this 
matter,  I  will  ask  if  there  is  any  further  report  from  the  Com- 
mittee of  Nations. 

Mr.  Justice  Nesbitt,  Chairman  of  the  Committee  of 
Nations : 

I  really  want  to  say  before  beginning  my  report  that  I  am 
made  happy  by  hearing  the  remark  of  my  "uncle"  [Mr.  Rob- 
ertson], for  we  in  Canada  are  nephews.  I  think  he  has  put  an 
end  to  the  statement  that  an  Enghshman  does  not  understand 
a  joke. 

The  first  matter  that  I  desire  to  report  upon  is  in  reference 
to  the  matter  which  was  laid  over  this  morning,  the  proposed 
permanent  international  association  of  lawyers  and  jurists.  I 
think  there  is  some  gentleman  on  the  floor  who  desires  to  say  a 
word  on  that  matter.  It  was  suggested  by  Mr.  Justice  Ken- 
nedy that  there  was  already  an  international  association,  which 
had  held  several  meetings,  and  he  thought  it  was  unwise  to 
multiply  associations. 

The  Honorable  jMartin  Dewey  Follett  of  Ohio,  a 
Delegate-at-large : 

I  made  the  motion  to  defer  a  vote  on  the  question,  and  it  was 
with  that  idea,  that  we  had  an  organization  which  filled  the  place. 


256     CONGRESS   OF  LAWYERS  AND   JURISTS 

Mr.  James  Hagerman  (Retiring  President  of  the  Amer- 
ican Bar  Association),  a  Delegate  from  the  United  States 
Government : 

Mr.  President  and  Gentlemen  of  the  Congress:  I  rise  now 
for  the  purpose  of  having  what  I  may  say  put  on  record,  so  as 
to  connect  this  Congress  with  the  American  Bar  Association 
and  the  objects  and  purposes  for  which  the  Congress  was  called. 
When  the  Louisiana  Purchase  Exposition  authorities  deter- 
mined upon  its  series  of  Congresses  of  the  various  arts  and 
sciences,  they  issued  an  invitation  in  the  nature  of  a  memorial 
to  the  American  Bar  Association,  asking  that  Association  to 
co-operate  with  them  in  bringing  about  an  universal  congress  of 
lawyers  and  jurists  of  the  world,  and  that  co-operation  was 
promised  by  the  American  Bar  Association  by  vote  of  its  mem- 
bers at  its  annual  meeting  in  Denver,  in  1901,  and  subsequently 
confirmed  at  the  annual  meetings  of  1902  and  1903.  When  the 
American  Bar  Association  acted  on  this  subject,  they  appointed 
a  committee,  which  they  called  in  their  record  the  Louisiana 
Purchase  Exposition  Committee.  That  committee,  in  consider- 
ing the  method  of  calling  together  this  Congress,  as  to  whom 
should  constitute  it,  and  as  to  what  subjects  should  be  consid- 
ered by  it,  which  were  largely  left  by  the  Exposition  Company 
to  the  American  Bar  Association,  at  one  stage  of  their  dehbera- 
tions  considered  the  question  of  what  permanency,  if  any,  there 
should  be  to  this  congress.  Should  it  be  left  with  simply  the 
records  of  its  proceedings,  or  should  it  be  a  link  between  the  past 
and  present  leading  up  to  some  organization  framed  somewhat 
along  the  lines  of  the  American  Bar  Association,  but  which 
should  embrace  the  nations  of  the  earth,  as  the  American  Bar 
Association  embraces  the  States  and  Territories  of  the  American 
Union?  It  was  known  at  that  time  that  there  was  in  existence 
another  law  association  international  in  character,  and  having 
recourse,  as  members  of  our  association  always  do  when  they 
want  current  information  as  to  international  matters,  to  the 
Nestor  of  our  Association — I  refer  to  the  gentleman  who  pre- 


MR.    JAMES    HAGERMAN  257 

sided  over  your  deliberations  this  morning,  Judge  Baldwin  of 
Connecticut — we  asked  him  wliether  the  proposed  perpetuation 
of  this  Congress  would  conflict  with  the  international  associa- 
tion now  in  existence.  He  told  us  that  that  association  was 
composed  in  part  of  laymen  and  in  part  of  jurists  and  lawyers, 
but  that,  in  his  judgment,  it  did  not  cover  the  field  which  was 
covered  by  the  American  Bar  Association  in  this  country.  We 
found  that  it  was  not  an  international  bar  association  which 
brought  together  fighting  soldiers — if  I  may  call  members  of  the 
legal  profession  such — face  to  face;  that  bench  and  bar  which 
does  the  practical  work  of  justice  in  times  of  peace  for  organized 
society.  The  action  of  that  committee  was  to  report  a  simple 
resolution  to  the  American  Bar  xAssociation  to  the  effect  that 
when  the  Congress  met,  the  delegates  of  the  American  Bar 
Association  in  such  Congress,  after  conferring  with  delegates 
from  foreign  countries  as  to  the  advisabihty  of  some  interna- 
tional bar  association  formed  along  the  fines  of  the  American 
Bar  Association,  if  that  should  be  deemed  advisable,  should  pre- 
sent the  matter  to  the  congress.  That  resolution  was  unani- 
mously adopted.     Its  exact  words  are : 

"Resolved,  That  the  delegates  from  the  American  Bar  Associa- 
tion to  the  International  Congress  of  Lawyers  and  Jurists  be  instructed 
to  take  into  consideration,  after  consultation  with  foreign  delegates, 
the  advisability  of  presenting  to  that  Congress  a  project  for  the 
formation  of  an  International  Bar  Association."  (See  Annual 
Report  American  Bar  Association,  1903,  pages  loi  and  102.) 

Afterwards  I  assumed,  as  President  of  the  Association,  some 
authority  in  referring  to  Mr.  Hensel  of  Pennsylvania,  Judge 
Baldwin  of  Connecticut,  and  Mr.  Rawle  of  Pennsylvania, 
the  subject  as  to  whether  or  not  the  delegates  of  the  American 
Bar  Association  to  the  Congress  should  make  any  tentative 
proposition,  and  if  so,  what,  as  to  an  international  bar  associa- 
tion or  international  congress  of  lawyers.  As  I  understand,  the 
report  of  this  Committee  of  Nations,  of  which  Mr.  Justice 
Nesbitt  of  Canada,  is  Chairman,  is  the  result  of  the  confer- 
ences with  the  foreign  delegates.     We  do  not  know,  we  could 


258     CONGRt:SS   OF   LAWYERS  AND   JURISTS 

not  know,  whether  this  International  Bar  Association  or  Inter- 
national Congress  would  be  perpetuated,  or  what  its  plan  will 
be,  but  it  is  with  a  sense  of  congratulation  that  we  find  that  the 
Committee  of  Nations  of  this  Congress  has  unanimously  agreed 
that  the  necessary  steps  may  be  taken  looking  to  something  of 
that  kind.  If  it  should  be  that  this  Congress  should  bring  forth 
an  International  Congress  or  International  Bar  Association  that 
would  come,  in  the  future,  to  have  the  illustrious  career  that  the 
American  Bar  Association  has  had,  and  become  the  leader  of 
Bar  Associations  throughout  the  world,  as  the  American  Bar 
Association  is  throughout  the  States  and  Territories  of  the 
United  States,  a  great  work  would  be  done.  The  project  may  be 
visionary,  but  this  resolution  is  certainly  of  a  practical  character. 
Sir  Frederick  Pollock  said,  at  the  last  banquet  of  the  Amer- 
ican Bar  Association,  that,  while  they  had  nothing  like  the 
American  Bar  Association  throughout  the  vast  British  Empire, 
that  he  hoped  to  see  the  day  when,  in  Great  Britain,  there 
would  be  a  bar  association,  central  in  its  character,  much  like 
the  American  Bar  Association,  and  he  would  then  have  us,  some 
day,  come  to  Canada,  and  would  welcome  us  there  as  guests  of 
that  association. 

What  I  ha\e  said  is  not  for  the  purpose  of  advocating  the 
passage  of  the  resolution  reported  by  the  Committee  of  Nations, 
because  there  is  no  opposition  to  it.  The  explanation  I  have 
made  is  for  the  purpose  of  having  it  go  on  record,  so  that  if  a 
great  international  bar  association  shall  be  formed,  we  can  refer 
back  to  its  beginning. 

Mr.  Walter  S.  Logan  of  New  York,  a  Delegate  from 
the  United  States  Government: 

Mr.  President:  I  heartily  agree  with  all  that  Mr.  Hagerman 
has  said.  I  am  a  member  of  the  International  Law  Associa- 
tion, and  fully  recognize  the  great  and  good  work  which  that 
association,  under  the  leadership  of  yourself  and  others,  has 
done.  I  am  one  of  those  who  have  been  quite  contented  to 
share  in  the  glory  of  that  association,  leaving  its  labor  to  others. 


MR.   WALTER    S.    LOGAN  259 

I  quite  agree  with  Mr.  Hagerman  that  the  field  of  the  proposed 
association  reported  by  the  committee  and  the  field  of  the  Inter- 
national Law  Association  are  entirely  different.  The  associa- 
tion, of  which  you  have  been  so  conspicuous  a  leader,  is  called 
"The  International  Law  Association."  Its  object  is  to  promote 
international  law  throughout  the  world.  It  is  for  the  promo- 
tion of  the  study  of  the  science  of  the  law.  The  name  of  the  pro- 
posed association  is  to  be  "The  International  Bar  Association," 
and  its  object  is  to  bring  together  the  bar  of  the  world  quite  as 
much  as  to  promote  the  study  of  law.  The  International  Law 
Association  naturally  deals  with  things;  the  International  Bar 
Association  will  have  more  to  do  with  men.  In  the  one  case 
law)'ers  come  together  to  study  international  law;  in  the  other, 
they  come  together  to  study  one  another,  and  to  get  acquainted 
with  their  fellow-members  of  the  bar  throughout  the  world. 

The  International  Bar  Association  is  to  be  organized,  not 
specially  in  the  interest  of  the  study  of  the  law  of  nations,  but 
rather  in  the  interest  of  the  lawyers  of  the  nations — the  law- 
yers behind  the  bench  as  well  as  the  lawyers  in  front  of  the 
bench.  I  am  sure  the  two  associations  will  not  in  any  way 
conflict.  The  International  Bar  Association  will  be  to  the  world 
what  the  American  Bar  Association  has  been  to  the  United 
States.  There  are  some  of  us  whose  hair  is  gray  enough  so 
that  we  remember  when  the  American  Bar  Association  was 
founded.  At  that  time  the  lawyers  of  the  United  States  did 
not  know  one  another.  The  la\\7ers  who  practiced  in  the  same 
court  were  acquainted,  but  their  acquaintance  was  confined,  to 
a  very  great  degree,  to  the  courts  they  practiced  in.  The  bar 
of  the  United  States  was  unacquainted  one  man  with  another. 
To-day,  throughout  the  whole  United  States,  the  lawyers  know 
each  other,  and  we  have  learned  to  appreciate  each  other.  The 
American  Bar  Association  has  had  its  effect,  not  simply  upon 
the  bar  itself,  but  upon  our  whole  national  hfe.  The  members 
of  the  bar  coming  together  each  year  become  acquainted,  one 
man  with  another,  and  members  of  the  bar  in  diflferent  sections 
of  the  country,  who  are  always  men  of  influence  and  importance 


26o     CONGRESS   OF  LAWYERS  AND   JURISTS 

in  their  sections,  are  coming  to  know  far  better  than  they  ever 
knew  before  the  citizens  of  other  sections  of  the  country.  We 
in  the  North  and  East  have  learned  to  appreciate  the  members 
of  the  bar  and  the  leading  citizens  of  the  West  and  South,  and 
you,  I  think,  have  learned  to  appreciate  us.  We  have  learned 
that  none  of  us  are  as  bad  as  we  have  been  painted.  The 
American  nation  is  stronger  to-day  for  what  the  American  Bar 
Association  has  done.  It  has  been  a  great  promoter  of  patri- 
otism. We  love  our  country  better  as  we  know  our  fellow-citi- 
zens better. 

We  have  been  discussing  to-day  the  question  of  universal 
peace.  It  is  perhaps  a  dream  now,  though  dreams  of  the  night 
sometimes  become  realities  in  the  morning.  There  is  nothing 
that  will  do  more  to  promote  the  peace  of  the  world  than  to  make 
leading  people  of  the  world  become  acquainted  with  one  another, 
and  the  lav^ers  are  the  leading  men  of  all  nations.  If  you  can 
organize  an  association  that  will  bring  together,  once  a  year  or 
even  less  often,  the  members  of  the  bar  of  the  world,  you  will 
do  more  to  secure  peace  than  The  Hague  Tribunal  can  ever  do. 
If  you  make  the  lawyers  of  all  nations  acquainted  with  one 
another,  so  that  they  will  understand  each  other  and  appreciate 
each  other,  you  will  be  doing  a  great  work  for  civilization. 
When  I  was  a  boy  I  was  taught  the  rhyme, 

"  Fe,  fi,  fo,  fum, 
I  smell  the  blood  of  an  Englishman." 

That  expressed  with  tolerable  accuracy  our  sentiments  towards 
our  cousins  across  the  sea.  We  looked  upon  them  with  a  feeling 
of  hostihty  rather  than  of  friendship.  In  later  years  we  have 
learned  to  know  them  better,  and  now  the  people  of  England 
and  America  are  fast  coming  to  regard  themselves  as  brothers 
not  only  in  race  and  blood,  but  in  civihzation  and  in  character, 
with  a  common  history  and  a  common  future,  and  the  security 
of  the  peace  of  the  world  to-day,  as  between  the  EngHsh-speak- 
ing  nations  of  the  world,  hes  not  in  treaties,  but  in  the  fact  that 
the  people  of  the  two  nations  have  come  to  know  and  appreciate 


AN    INTERNATIONAL   BAR   ASSOCIATION    261 

one  another,  and  to  look  upon  each  other  as  brethren.  I  be- 
lieve that  will  be  true  of  all  nations  and  peoples  as  they  become 
acquainted  better  and  better  with  one  another.  I  know  of  no 
profession,  no  body  of  men,  more  entitled  to  take  the  initiative 
in  this  matter  than  the  lawyers  of  the  world.  The  lawyers  are 
the  leaders  in  every  nation,  and  the  more  civilized  the  nation, 
the  more  the  lawyers  lead.  If  the  lawyers  of  the  world  will 
establish  an  international  bar  association  which  will  bring  them 
together,  you  will  take  a  long  step  towards  abolishing  war  in 
the  world.     It  will,  I  believe,  be  a  great  triumph  for  peace. 

I  hope  that  the  resolution  which  was  reported  from  the  com- 
mittee will  be  passed,  and  I  am  sure  there  will  be  no  member  of 
this  body  who  will  rejoice  more  in  the  perfection  of  such  an  as- 
sociation and  be  more  glad  to  help  make  it  successful  than  the 
distinguished  jurist  who  sits  in  the  chair  this  afternoon,  and  who 
has  done  so  much  to  make  the  International  Law  Association  a 
great  success  in  the  world.     [Applause.] 

Mr.  Follett: 

I  am  glad  to  learn  what  has  been  said,  and  I  concur  with  it. 

Mr.  Everett  P.  Wheeler  : 

Mr.  President:  The  International  Law  Association  does 
ever}^thing  which  Mr.  Logan  has  informed  us  ought  to  be  done. 
Through  it  we  meet  lawyers  and  judges  from  different  nations, 
and  we  promote  the  ends  of  friendship  and  social  intercourse 
by  our  meetings.  These  features  are  quite  as  prominent  as 
the  study  of  the  law.  In  short,  if  you  were  to  take  down  one 
name  and  put  up  the  other,  you  would  find  in  the  meeting  of  the 
International  Law  Association  a  congress  of  lawwers  and  jurists. 
It  seems  to  me  it  would  be  a  distinct  misfortune  if  there  were  two 
associations.  If  I  may  be  pardoned  for  making  the  comparison, 
it  would  be  like  the  two  organizations  the  "Daughters  of  the 
Revolution"  and  the  "Daughters  of  the  American  Revolution." 
There  is  a  certain  limit  to  human  powers,  and  if  you  have  in 
one  year  a  meeting    at  Amsterdam,  or  London,  or   Paris,  or 


262      CONGRESS   OF  LAWYERS  AND   JURISTS 

Rome,  of  the  International  Law  Association,  and  the  same 
year  have  another  meeting  of  the  Congress  of  Lawyers  and 
Jurists  at  Berlin  or  at  St.  Louis,  we  should  find  it  impossible  to 
attend  both. 

Mr.  F.  M.  HuFFAKER,  a  Delegate  appointed  by  the 
Supreme  Court  of  Nevada,  U.  S.  A.: 

Mr.  President:  Being  a  representative  of  that  growing  em- 
pire that  lies  west  of  the  Rocky  Mountains,  which  will  soon  con- 
tain the  center  of  population  of  this  nation,  I  want  to  say  that 
if  the  law  is  a  conservative  factor  in  civilization,  I  see  no  better 
way  to  reach  the  millennium,  foretold  in  Revelations,  than  to 
convince  the  world  that  difficulties  now  settled  by  the  sword  can 
be  settled  by  the  application  of  law.  As  we  have  representa- 
tives here  from  all  nations  of  the  earth,  we,  as  Americans,  can 
say  to  them  that  if  they  meet  with  us  and  investigate  these  ques- 
tions that  concern  our  national  relationships,  as  we  do  those 
that  concern  our  individual  relationships,  we  will  find  in  time 
that  by  meeting  and  discussing  propositions  no  question  can 
arise  as  to  what  may  be  the  rights  of  belligerents  on  the  sea, 
or  as  to  the  protection  of  private  property  in  time  of  war,  because 
there  would  be  no  such  thing  known  to  the  human  race,  and  if  we 
reach  that  time  it  will  be  through  the  instrumentalities  of  the  law. 
If  we  can  get  an  association  formed  to  bring  the  people  of  the 
world  together  and  understand  their  rights,  law  being  founded 
on  justice,  that  will  do  away  with  everything  except  the  adjudi- 
cation of  rights  according  to  the  forms  of  law,  and  when  that  is 
done  no  war  will  be  necessary.     [Applause.] 

Mr.  J.  O.  Crosby,  a  Delegate  from  the  Iowa  State  Bar 
Association,  U.  S.  A. : 

Mr.  President:  I  am  a  member  of  this  International  Law 
Association.  As  it  deals  with  questions  of  international  law,  it 
seems  to  me  that  it  covers  the  substantial  requirements  of  the 
resolution  that  has  been  referred  to.  From  the  remarks  of  Mr. 
Logan,  of  New  York,  it  seems  to  me  that  his  idea  of  the  new 


AN    INTERNATIONAL    BAR    ASSOCIATION    263 

organization  is  that  it  should  be  like  the  preacher  that  I  once 
heard  of  who  was  neutral  in  politics  and  religion.  Mr.  Logan 
wishes  to  have  the  assemblage  for  the  benefit  of  the  members 
of  the  bar,  and  not  for  the  advancement  of  the  science  of  law. 
That  is,  lawyers,  the  la\\Ters  of  the  world,  should  assemble 
together  in  that  organization  for  social  purposes,  and  for  the 
time  being  they  should  be  like  "necessity,"  that  "know's  no  law." 
I  was  somewhat  surprised  to  hear  from  Mr.  Hagerman  the 
opinion  which  was  expressed  by  the  gentleman  who  was  the 
former  president  of  the  International  Law  Association,  that  it 
did  not  answer  the  purposes  which  the  resolution  proposes  for 
the  new  organization.  I  cannot  see  why  it  does  not  answer  the 
purposes,  and  I  wonder  that  Mr.  Logan,  in  his  attendance  on 
the  meetings,  has  never  struck  the  social  vein  in  that  organiza- 
tion. Because  we  have  discussed  questions  of  law,  it  has  not 
interfered  with  social  discussions  among  the  members.  [Ap- 
plause.] 

Mr.  John  N.  Dryden,  a  Delegate  from  the  Nebraska 
State  Bar  Association,  U.  S.  A. : 

Mr.  President:  The  Universal  Congress  of  Law^'ers  and 
Jurists  ought  to  be  perpetuated  somehow.  The  spirit  of  these 
deliberations  must  make  us  more  regardful  of  the  humanities. 

I  was  much  impressed  by  the  report  of  the  Committee  of 
the  American  Bar  Association  on  the  subject  of  the  American 
Indians.  Among  other  things,  an  army  officer  was  quoted  as 
saying  that  property  had  always  been  a  constant  menace  to  the 
Indian.  That  statement  is  an  epitome  of  our  American  policy 
from  the  beginning,  and  whenever  danger  has  threatened  the 
Indians  in  the  form  of  property  that  was  at  all  attractive,  we 
have  saved  our  wards  by  relieving  them  of  the  property. 

As  lawyers,  we  know  that  this  principle  is  susceptible  of  a 
much  broader  application.  I  have  practiced  it  constantly 
toward  my  chents  for  many  years.  Lawyers  in  the  Great 
American  Desert  are  not  practicing  their  profession  for  hygienic 
purposes.     But,  seriously,  it  seems  to  me,  gentlemen,  that  the 


264     CONGRESS   OF  LAWYERS  AND   JURISTS 

organization  which  has  been  described  here  will  do  much  toward 
keeping  before  the  world  the  best  ideals  of  the  Christian  religion, 
and  likewise  toward  maintaining  that  splendid  poise  which  pre- 
serves the  integrity  of  institutions  for  righteousness  everywhere. 
[Applause.] 

The  Acting  President: 

Time  presses,  and  I  will  simply  put  the  resolution  which  has 
come  to  us.     The  resolution  is  this: 

"Resolved,  That  this  Congress,  recognizing  the  importance  of 
promoting  friendly  intercourse  between  the  jurists  and  lawyers  of 
different  nations,  to  the  end  that  by  harmonious  effort  they  may 
labor  efficiently  for  the  improvement  of  the  law  and  the  maintenance 
of  international  peace,  request  the  American  Bar  Association  to 
take  such  steps  as  are  necessary  to  organize  a  permanent  association 
of  lawyers  representing  the  different  countries  of  the  world,  which 
shall  meet  at  regular  intervals  to  discuss  legal  questions  of  public 
interest,  and  that  this  resolution  be  transmitted  to  the  Secretary  of 
the  American  Bar  Association." 

The  resolution  was  unanimously  adopted. 

The  Acting  President: 

The  Committee  of  Nations  is  now  ready  to  make  a  report. 

Mr.  Justice  Nesbitt,  Chairman  of  the  Committee  of 
Nations: 

Mr.  President,  and  Gentlemen  of  the  Congress:  For  the 
Committee  of  Nations,  I  wish  to  submit  a  resolution  from  Mr. 
NiLES,  which  we  present  for  action  by  this  Congress. 

"Resolved,  That  this  Congress  records  the  death,  during  its 
sessions,  of  Hon.  George  F.  Hoar  of  Massachusetts,  with  keen 
grief  and  deep  regret. 

"He  was  one  of  its  most  distinguished  members,  and  his  pro- 
found learning,  consistent  patriotism,  and  ripe  experience  have 
here  been  sadly  missed.  His  example  will  long  be  an  inspiration  to 
all  students  of  law  and  lovers  of  justice. 

"Resolved,  That  the  Secretary  convey  to  Mr.  Hoar's  family 
expression  of  the  condolence  of  this  Congress,  with  a  copy  of  these 
resolutions." 


RESOLUTIONS  265 


The  Acting  President  : 

I  shall  consider  that  resolution  as  adopted. 

Mr.  Justice  Nesbitt: 

I  beg  to  present  another  resolution  of  Mr.  Finkelnburg's, 
with  reference  to  the  exemption  of  private  property  other  than 
contraband  of  war,  which  you  have  heard  discussed  in  his  paper, 
and  on  which  there  have  been  addresses  delivered.  This 
was  a  matter  which  was  laid  over  yesterday.  You  will  remem- 
ber that  Mr.  Finkelnburg  asked  for  the  consideration  of  his 
resolution  in  favor  of  the  exemption  of  private  property  of  ene- 
mies except  contraband  in  the  time  of  war.  The  Committee  of 
Nations,  after  very  full  discussion  of  it,  a  slight  echo  of  which 
you  can  see  in  the  discussion  which  took  place  this  afternoon, 
came  to  the  conclusion  that  it  were  better  that  it  should  be 
simply  forwarded  as  one  of  the  matters  to  be  considered  by  the 
further  conference,  if  one  is  to  be  held,  at  The  Hague.  It  was 
discussed  there  very  thoroughly  and  no  action  was  taken, 
because  the  late  conference  felt  that  it  had  no  power  to  deal  with 
the  subject.  It  is  now  for  this  Congress  to  say  whether  it  will 
pass  Mr.  Finkelnburg's  resolution  or  leave  it  as  a  matter  not 
to  be  decided  here. 

Mr.  Finkelnburg: 

In  view  of  the  late  hour,  not  permitting  of  any  further  dis- 
cussion of  this  important  question,  I  suggest,  as  a  substitute  for 
my  original  motion,  that  this  Congress  recommend  the  change 
in  international  law  referred  to.  I  think  it  would  be  well  to 
accept  the  suggestion  as  made,  that  this  important  subject  be 
recommended  to  the  next  conference,  which  is  to  be  held  at 
The  Hague,  for  its  consideration. 

The  Acting  President: 

I  have  no  doubt  that  it  will  be  adopted  unanimously. 


266      CONGRESS   OF  LAWYERS   AND   JURISTS 

Mr.  Justice  Nesbitt: 

There  is  a  large  number  of  other  communications,  and  I 
mention  them  because  I  do  not  wish  any  gentleman  to  feel  that 
his  communication  has  not  been  considered  by  the  Committee 
of  Nations.  I  will  say  that  we  have  worked  rather  hard  on 
these  matters.  I  shall  just  mention  them,  and  bring  in  a  resolu- 
tion which,  if  it  pleases  you,  will  cover  all  these  various  matters. 
Many  of  them  are  matters  of  the  very  greatest  importance, 
matters  which  call  for  the  gravest  consideration,  and  which 
would  be  the  subject  of  debate,  judging  from  what  transpired 
at  the  meetings  of  the  Committee,  because  you  will  understand 
that  a  committee,  composed  of  gentlemen,  as  that  is,  is  likely 
to  have  divergent  views  until  they  can  be  harmonized.  Each 
man  thinks  for  himself. 

There  is  one  matter  that  I  would  like  to  have  reported  on, 
and  that  is  in  regard  to  some  British  attach^  running  down 
somebody  in  Massachusetts  with  an  automobile.  I  will  say, 
speaking  for  myself  and  being  with  the  majority,  that  I  would 
like  to  see  any  scorcher  sent  to  jail.  The  Committee  feel  that 
it  is  not  right  to  take  action  yet  in  regard  to  matters  interfering 
with  the  various  legations. 

There  was  a  resolution  by  Mr.  Francis  Rawle  in  regard  to 
the  right  of  search  of  neutral  vessels,  which  was  under  discus- 
sion by  the  Committee;  also  a  resolution  in  regard  to  the  sur- 
render of  criminals,  offered  by  Seflor  Don  Manuel  Azpiroz;  a 
resolution  in  regard  to  divorce,  the  rights  and  duties  between 
parents  and  children ;  a  resolution  in  regard  to  the  establishment 
of  a  bureau  for  the  study  of  criminology,  introduced  by  Mr. 
Joseph  R.  Edson  of  Washington,  D.  C,  and  a  very  important 
resolution  by  M.  de  Lobel  of  Paris,  France,  which  I  am  sorry 
we  had  not  greater  time  to  discuss,  relating  to  a  matter  that  is 
of  very  great  moment  to  investors,  to  get,  by  treaty  or  otherwise, 
some  settled  form  of  articles  of  association  for  all  joint  stock 
companies  throughout  the  world,  so  that  no  matter  in  what  part 
of  the  world  you  are  dealing,  you  are  quite  certain  the  legislation 
is  the  same.     There  was  a  very  full  argument  on  the  matter. 


THE    COMMITTEE    OF    NATIONS  267 

It  is  a  matter  that  you  can  readily  see  would  call  for  a  great  deal 
of  discussion,  and  certainly  has  a  great  deal  of  merit  in  it,  but 
the  Committee  have  instructed  me  to  present,  for  your  consid- 
eration, a  general  recommendation  covering  all  these  matters. 
The  general  recommendation  is  as  follows : 

"That  there  has  been  submitted  to  the  Committee  a  variety  of 
resolutions  dealing  with  subjects  of  much  importance,  but  upon 
which  a  great  division  of  opinion  exists.  In  view  of  the  very  limited 
lime  which  remains  before  this  Congress  adjourns,  it  is  clear  that  no 
adequate  conclusion  can  be  reached  upon  any  of  these  matters,  and 
the  Committee  therefore  recommends  that  they  be  sent  to  the  Secre- 
tary of  the  American  Bar  Association,  with  a  view  to  their  possible 
consideration  by  another  Congress." 

On  motion  the  recommendation  of  the  Committee  was 
adopted. 

Mr.  Justice  Nesbitt: 

Closing  the  labor  of  the  Committee  of  Nations,  I  desire  to 
present  a  resolution  presented  by  Mr.  Walter  S.  Logan  of 
New  York,  which  each  member  of  the  Committee  desires  to  par- 
ticipate in: 

"Resolved,  That  the  Universal  Congress  of  Lawyers  and  Jurists 
acknowledge  and  appreciate  the  hospitality  of  the  Louisiana  Pur- 
chase Exposition  Company  and  its  officers,  and  of  the  Missouri 
State  Bar  Association,  and  the  Bar  Association  of  St.  Louis,  and 
the  officers  and  members  of  the  associations  as  well  as  the  citizens 
generally  of  the  city  and  State. 

"  Our  stay  here  has  been  made  both  pleasant  and  profitable,  and 
we  shall  carry  back  to  our  homes  and  ever  retain  a  lively  remem- 
brance of  what  we  enjoyed  while  guests  at  the  Exposition." 

On  motion  the  resolution  was  adopted  unanimously. 

The  Secretary: 

The  Department  of  Music  of  the  Exposition,  which  has 
charge  of  this  Festival  Hall,  extends  a  cordial  invitation  to  all 
the  members  of  the  Congress  and  their  ladies  to  remain  for  an 
organ  recital  by  M.  Alexandre  Guilmant  of    Paris,  which 


268     CONGRESS   OF   LAWYERS   AND   JURISTS 

will  take  place  at  five  o'clock,  following  the  adjournment  of  the 
Congress. 

I  am  requested  to  announce  again  that  the  reception,  to  be 
given  from  eight  to  ten  o'clock  this  evening  by  the  Board  of 
Lady  Managers  of  the  Exposition  at  their  rooms  in  the  Hall  of 
Congresses,  is  not  only  for  the  members  of  this  Congress,  but 
also  for  the  ladies  of  the  party.  Delegates  who  may  not  have 
received  individual  invitations  should  know  that  invitations  have 
been  mailed  to  all  who  have  registered.  They  were  mailed  to 
local  addresses,  but  possibly  some  have  miscarried.  All  are 
expected  to  be  present. 

The  President  desires  to  have  announced  that  the  reading  of 
a  paper  on  the  subject  "Notes  on  Chinese  Legislation," 
by  Professor  C.  M.  Lacey-Sites  of  Shanghai,  China,  a  Dele- 
gate-at-largc,  which  he  has  prepared  by  invitation  of  the  Com- 
mittee, will  have  to  be  omitted,  owing  to  lack  of  time  remaining 
at  the  disposition  of  the  Congress,  but  it  will  be  printed  in  full 
in  the  proceedings  of  the  Congress.     [See  Appendix  F.] 

I  am  requested  to  announce  also  that  an  address,  prepared 
by  his  Excellency  Senor  Don  Manuel  de  Azpiroz,  the  Mexi- 
can Ambassador  to  the  United  States  and  a  Vice-President  of 
this  Congress,  will  be  printed  in  the  proceedings  of  this  Congress. 
[See  Appendix  D.] 

At  this  point  Vice-President  Sir  William  R.  Kennedy 
resigned  the  Chair  to  President  Brewer. 

The  President: 

Is  there  any  other  matter  to  be  brought  before  the  Congress 
prior  to  its  adjournment?  Your  silence  answers  this  question 
in  the  negative.  The  programme  provides  that  at  the  close  of  to- 
day's session  there  shall  be  an  adjournment  either  to  to-morrow 
morning  or  sine  die;  to-morrow  morning,  if  there  is  any  unfin- 
ished business,  sine  die  if  there  is  none.  There  is  no  unfinished 
business,  and  so  it  becomes  my  duty  to  declare  this  Congress 
finally  adjourned,  and  in  doing  so  permit  me  to  express  the 


ADJOURNMENT  269 


belief  that  it  will  prove  to  be  fruitful  in  results,  that  not  in  vain 
have  you  gentlemen  gathered  from  different  sections  of  this 
country,  and  from  other  countries,  to  take  part  in  this  Congress, 
this  Universal  Congress  of  La\vyers  and  Jurists.  We  know 
that  the  poet  says : 

"Some  day  love  shall  claim  his  own, 
Some  day  right  ascend  the  throne, 
Some  day  brotherhood  be  known, 
Some  day,  some  sweet  day." 

And  I  feel  sure  that  this  gathering  will  tend  to  bring  on  that 
sweet  day  towards  which  we  all  look.  I  now  declare  this 
Congress  adjourned  sine  die. 


LIST  OF   DELEGATES  ACCREDITED  TO 

THE  UNIVERSAL  CONGRESS  OF 

LAWYERS  AND  JURISTS 

[(*)  Indicates  Those  Present] 


ARGENTINE  REPUBLIC 

Delegate-at-large: 
*Dr.  Josi':  V.  Fernandez. 


AUSTRIA 

Delegate  from  the  University  0}  Vienna: 
Dr.  Eugen  von  Philippovich. 

Delegate-at-large: 
♦Adalbert  Ritter  von  Stibral. 

BELGIUM 

Delegate  from  the  Order  of  Advocates  of  Ghent: 
♦Henri  Boddaert. 

Delegates  from  the  Order  oj  Advocates  oj  Brussels: 
Louis  de  Sadeleer. 
Jules  Renkin. 

Delegate  from  the  University  oj  Louvain: 
♦Professor  Alfred  Nerincx,  LL.D. 

Delegates-at-large: 

Henri  la  Fontaine. 
Emile  Vander  Velde. 
♦Valentin  Brifaut. 
270 


LIST    OF    DELEGATES  271 

BRAZIL 

Government  Delegate: 

*L0PES  GONCALVES. 

CANADA 

Delegates  jrom  the  Law  Society  0}  British  Columbia: 

♦Gordon  Hunter, 
Chief  Justice  of  British  Columbia. 

*E.  P.  Davis. 

Delegates  jrom  the  Law  Society  oj  U pper  Canada  {Toronto): 

.^^MiLius  Irving. 
Allen  Bristol  Aylesworth. 
William  Renvvick  Riddell. 
James  Morrison  Glenn. 

Delegates  jrom  the  General  Council  oj  the  Bar  oj  the  Province  oj 

Quebec,  {Montreal): 

H.  Archambault, 
.\ttomey-General  of  the  Province. 

F.  X.  Drouin, 

Batonnier  of  the  Quebec  Bar. 

D.  Macmaster. 

Delegates  jrom  the  Junior  Bar  Association  oj  Montreal: 
*Edouard  Fabre  Surveyer. 
*Leon  Garneau. 

Delegates  jrom  the  Law  Societies  oj  the  Northwest  Territories: 

J.  A.  LOUGHEED. 

R.  B.  Bennett. 
James  Short. 
♦Oliver  M.  Biggar. 

Delegate  jrom  the  Law  Society  oj  the  Province  oj  Prince  Edward 

Island: 

Justice  Fitzgerald, 
Of  the  Supreme  Court  of  the  Province. 


272      CONGRESS   OF   LAWYERS   AND   JURISTS 

Delegates-at-large: 
♦Wallace  Nesbitt, 

Justice  of  the  Supreme  Court  of  the  Dominion. 

David  Hearne, 
Of  the  Bar  of  Nova  Scotia. 


CEYLON 

Delegate  from  the  Law  Society  oj  Ceylon: 
Hector  Van  Cuylenberg. 

Delegates-at-large: 

*D.  Obeyesekere. 
*R.  E.  Pieris. 

CHINA 

Government  Delegates: 

*Chow  Tszchi. 
*SuN  SzE  Yee. 

Delegate-at-large: 

*C.  M.  Lacey-Sites. 
Professor  in  Nanyang  College,  Shanghai. 

EGYPT 

Government  Delegate: 
*SoMER\aLLE  P.  Tuck, 

Judge  in  the  Cairo  Mixed  Court. 

Delegate-at-large: 
L.  Carton  de  Wiart. 

FRANCE 

Government  Delegate: 

*A.  Larnaude, 
Professor  in  the  Faculty  of  Law  of  Paris. 


LIST    OF    DELEGATES  273 

Delegate  frofn  the  University  oj  Bordeaux: 

M.  PiGUIT. 

Delegate  from  the  University  0}  Montpellier: 
Jules  Valery. 

Delegate  front  la  Societe  de  Legislation  Comparee  de  Paris: 
*Georges  Blondel. 

Delegate-at-large: 

*LoiCQ  DE  Lobel, 

Of  Paris. 

GERMANY 

Delegates    from    the    Internationale    Vereinigung   jur    Vergleichende 
Rechtswissenschaft  und  Volkswirthschajtslehre  zu  Berlin: 

Dr.  Zahn, 

Regierungsrat  Professor  in  Berlin  University. 

Dr.  Wahrmumd, 
Professor  at  Innsbruck,  Austria. 

A.  Brunialti, 

Councilor  of  State,  of  Rome,  Italy. 

♦Georges  Blondel, 

Of  Paris,  France. 

L.  S.  ROWE, 

Professor  in  the  University  of  Pennsylvania,  U.  S.  A. 

*MoNROE  Smith, 

Professor  in  Columbia  University,  New  York,  U.  S.  .\. 

Edmund  James, 
President  of  Northwestern  University,  Evanston,  111.,  U.  S.  .A. 

Delegates-at-large: 
*Dr.  Adolf  Hartmann, 

Judge  in  the  KonigHches  Land-Gericht,  Berlin. 

*Paul  Doertenbach, 

Of  Stuttgart. 

*Dr.  R.  Berndes. 
Of  Hamburg. 


274     CONGRESS   OF  LAWYERS   AND   JURISTS 

GREAT  BRITAIN  AND  IRELAND 

Delegate  from  the  International  Law  Association: 
*SiR  William  R.  Kknnedy, 

One  of  the  Judges  of  the  High  Court  of  Justice  of  England. 

Delegates  from  the  General  Council  of  the  Bar  of  England: 
Sir  R.  B.  Finlay  (the  Attorney-General). 
W.  Donaldson  Rawlins. 
J.  F.  P.  Rawlinson. 
John  Scott  Fox. 
Sir  John  Macdonnell. 
Edward  W.  D.  Hansen. 
J.  H.  Keeling. 
George  G.  Phillimore. 
J.  Pawley  Bate. 
J.  A.  Simon. 
*George  S.  Robertson. 

Delegate  from  the  Incorporated  Law  Society  of  the  United  Kingdom: 

Sir  Albert  K.  Rollit. 

Delegate  from  the  Incorporated  Law  Society  of  Ireland: 
William  S.  Hayes, 

Solicitor  and  King's  Proctor  for  Ireland. 

Delegate  from  the  Faculty  of  Law  of  Oxford  University: 

James  Williams. 
Archibald  A.  Prankerd. 

Delegate  from  the  Law  Faculty  of  Cambridge  University: 
William  Hepburn  Buckler. 

Delegate  from  the  Law  Faculty  of  the  Victoria  University  of  Man- 
chester: 

Alexander  Grant. 

Delegate  from  the  University  of  Edinburg: 
Hannis  Taylor, 

Of  Washington,  D.  C,  U.  S.  A. 


LIST    OF   DELEGATES  275 

Delegates  from  the  University  of  Wales: 

*W.  Jethro  Brown. 
*T.  Arthur  Levi. 


HAITI 

Government  Delegate. 
J.  N.  Leger, 

Envoy  Extraordinary  and  Minister  Plenipotentiary. 

HUNGARY 

Government  Delegate: 
Gabriel  Valyi. 

Professor  in  the  University  of  Kolozsvar. 

ITALY 

Delegates  from  the  Order  of  Advocates  0}  Rome: 
ViTTORio  SciALOiA,  Senator. 
Stanislao  Monti- Guarnieri, 

Deputy  in  the  National  Parliament. 

Delegate  from  the  Order  of  Advocates  of  Naples: 
Ernesto  Fortunato. 

Delegate  from  the  Order  of  Advocates  of  Ferrara: 
Victor  de  Andreis,  Praetor. 

Delegates  from  the  Order  of  Advocates  of  Catania: 
Professor  Gaetano  Maiorana. 

COLOGERO    GaGLIO. 

Francesco  Ciancico. 

Delegate  from  the  Faculty  of  Law  of  Padua  University: 
*Professor  Carlo  Francesco  Ferraris. 

Delegates-at-large: 

A.  Brunialti, 
Of  Rome,  Councilor  of  State. 


276      CONGRESS   OF  LAWYERS  AND   JURISTS 

*Angelo  Pavia, 

Of  Rome,  Deputy  in  the  National  Parliament. 

*P.    GlORDANA, 

Of  Crema. 

*Arnoldo  de  Daninos, 

Of  Milan. 
*Albp:rto  Alfani, 

Of  Florence. 


MEXICO 

Government  Delegates: 
*Manuel  De  Azpiroz, 

Ambassador  Extraordinary  and  Plenipotentiary. 

*Emilio  Velasco. 
*Emeterio  de  la  Garza. 
*Ygnacio  Perez  Salazar. 

[Secretary  of  the  Delegation: 
*Luis  G.  Labastida,  Jr.] 

NETHERLANDS 

Government  Delegate  and  Representative  oj  the  Faculty  of  Law  oj  the 

University  of  Amsterdam: 

*D.    JOSEPHUS    JiTTA. 

SWEDEN 

Delegate-at-large: 
*GusTAF  E.  Fahlcrantz. 

Of  Stockholm. 

SWITZERLAND 

Delegate-at-large: 

*F.  Meili, 
Professor  in  the  University  of  Zurich. 


LIST    OF    DELEGATES 


27: 


UNITED  STATES  OF  AMERICA 

THE    GOVERNMENT    DELEGATES,    APPOINTED    BY    THE    PRESIDENT    OF 

THE  UNITED  STATES 

(This  list  comprises  the  Chief  Justice  and  Associate  Justices  0} 
the  Supreme  Court  of  the  United  States;  the  presiding  Judges  oj  the 
United  States  Circuit  Courts  oj  Appeal;  the  Chief  Justices  of  the 
Appellate  Courts  of  the  District  of  Columbia  and  the  United  States 
Court  of  Claims  at  Washington;  the  lawyers  of  the  President's  Cabinet; 
the  Solicitor-General;  the  living  ex-Attorneys-General;  lawyers  from 
the  Senate  and  the  House  of  Representatives  of  the  United  States, 
taken  largely  from  the  judiciary  committees  of  those  bodies;  the  Pre- 
siding Justices  and  Attorneys-General  of  the  courts  of  our  Territories 
and  foreign  possessions;  the  living  ex-Presidents  of  the  American 
Bar  Association,  and  eminent  lawyers  in  various  parts  of  the  country.) 

{The  Chief  Justice  and  Associate  Justices  of  the  Supreme  Court  of 

the  United  States) 
Melville  W.  Fuller. 
Henry  B.  Brown.  Oliver  Wendell  Holmes. 

John  M.  Harlan.  Rufus  W.  Peckham. 

*David  J.  Brewer.  Joseph  McKenna. 

Edward  D.  White.  William  R.  Day. 


(The  Presiding  Judges  of  the  United  States  Circuit  Court  of  Appeals) 
Le  Baron  Colt Bristol,  R.  I. 


William  J.  Wallace 

Marcus  W.  Acheson 

Nathan  Goff 
*DoN  A.  Pardee 
♦Horace  H.  Lurton  . 

James  G.  Jenkins 
♦Walter  H.  Sanborn 

William  B.  Gilbert 


Albany,  N.  Y. 
Pittsburg,  Pa. 
Clarksburg,  W.  Va. 
New  Orleans,  La. 
Nashville,  Tenn. 
Milwaukee,  Wis. 
St.  Paul,  Minn. 
Portland,  Ore. 


{The  Chief  Justices  of  the  Appellate  Courts  of  the  District  of  Colum- 
bia and  oj  the  United  States  Court  of  Claims) 
Richard  H.  Alvey,  Court  of  Appeals  of  the  District  of  Columbia. 
Harry  M.  Clabaugh,  Supreme  Court  of  the  District  of  Columbia. 
Charles  C.  Nott      .         .         .        United  States  Court  of  Claims. 


278     CONGRESS   OF  LAWYERS   AND   JURISTS 


UNITED    STATES    OF   AMERICA   (continued) 

THE    GOVERNMENT    DELEGATES    (continued) 

{The  Lawyers  of  the  President's  Cabinet) 


John  Hay     . 
Leslie  M.  Shaw  . 
William  H.  Taft 
Philander  C.  Knox 
William  H.  Moody 


Secretary  of  State. 
Secretary  of  the  Treasury. 
Secretary  of  War. 
Attorney-General . 
Secretary  of  the  Navy. 


{The  Living  ex- Attorneys-General  of  the  United  Stales) 
George  H.  Williams    ....         Portland,  Ore. 


Wayne  MacVeagh 
W.  H.  H.  Miller 
Richard  Olney    . 
JuDsoN  Harmon    . 
John  W.  Griggs  . 


Henry  M.  Hoyt 


{The  Solicitor  General) 


Washington,  D.  C. 
Indianapolis,  Ind. 
Boston,  Mass. 
Cincinnati,  Ohio. 

New  York,  N.  Y. 


Washington,  D.  C, 


{Lawyers  from  the  Senate  and  the  House  of  Representatives  of  the 
United  States,  taken  largely  from  the  Judiciary  Committees  of 
those  Bodies) 


George  F.  Hoar 

John  C.  Spooner 

John  T.  Morgan 

John  W.  Daniel 

Charles  W.  Fairbanks 

Francis  M.  Cockrell 

Alfred  B.  Kittredge 

John  J.  Jenkins 

John  Dalzell    . 
*Henry  W.  Palmer     . 

Charles  E.  Littlefield 
♦David  A.  de  Armand 

Henry  D.  Clayton    . 

John  Sharp  Williams 


United  States  Senate. 

United  States  Senate. 

United  States  Senate. 

United  States  Senate. 

United  States  Senate. 

United  States  Senate. 

United  States  Senate. 
House  of  Representatives. 
House  of  Representatives. 
House  of  Representatives. 
House  of  Representatives. 
House  of  Representatives. 
House  of  Representatives. 
House  of  Representatives. 


LIST    OF    DELEGATES  279 

UNITED    STATES    OF   AMERICA  (continued) 

THE    GOVERNMENT   DELEGATES    (continued) 

{The  Presiding  Justices  of  the  Courts  of  the  Territories  and  Foreign 
Possessions  of  the  United  States  and  other  officials) 

*WiLLiAM  H.  Pope, 

Supreme  Court  of  New  Mexico,  Roswell,  N.  M. 

Edward  Kent, 
Supreme  Court  of  Arizona,  Phoenix,  Ariz. 

*James  Wickersham, 

United  States  District  Court,  Eagle,  Alaska. 

Sanford  B.  Dole, 

United  States  District  Court,  Honolulu,  Hawaii. 

Lorrin  Andrews, 

Attorney-General,  Honolulu,  Hawaii. 

William  H.  Hunt, 

Governor  of  Porto  Rico,  San  Juan,  P.  R. 

Jose  Severo  Quinones, 

Supreme  Court  of  Porto  Rico,  San  Juan,  P.  R. 

Luke  Wright, 

Governor  of  the  Philippine  Islands,  Manila,  P.  I. 

L.    R.    WiLFLEY, 
Attorney-General,  Manila,  P.  I. 

Cayetano  Arellano, 

Supreme  Court  of  the  Philippine  Islands,  Manila,  P.  I. 

Willis  Sweet, 
Attorney-General,  San  Juan,  P.  R. 

{The  Living  ex-Presidents  of  the  American  Bar  Association) 


*Cortlandt  Parker  . 
*SiMEON  E.  Baldwin 
*JoHN  F.  Dillon 

James  C.  Carter 
*Moorfield  Storey  . 

James  M.  Woolworth 

William  Wirt  Howe        .         .         .         New  Orleans,  La. 


Newark,  N.  J. 
New  Haven,  Conn. 
New  York  City. 
New  York  City. 
Boston,  Mass. 
Omaha,  Neb. 


28o      CONGRESS   OF    LAWYERS   AND    JURISTS 
UNITED    STATES    OF   AMERICA   (continued) 

THE    GOVERNMENT    DELEGATES    (continued) 

(Living  ex- Presidents  of  the  American  Bar  Association)  (continued) 

Joseph  H.  Choate  ....  London,  England. 

♦Charles  F.  Mandp:rso\  .         .         .  Omaha,  Neb. 

Edmund  Wetmore    ....  New  York  City. 

U.  M.  Rose Little  Rock,  Ark. 

♦Francis  Rawlk         ....  Pliiladelphia,  Pa. 


{Eminent  Lawyers) 

♦Charles  Claflin  Allen  . 
♦James  DeWitt  Andrews 

George  Tucker  Bispham 

Charles  J.  Bonaparte     . 
♦Wilbur  F.  Boyle     . 
♦William  P.  Breen    . 
♦A.  B.  Browne 

Charles  Henry  Butler  . 

John  G.  Carlisle    . 

Holmes  Conrad 

Frederick  R.  Coudert,  Jr. 

Don  M.  Dickinson 
♦J.  M.  Dickinson 
♦M.  F.  Dickinson 

Samuel  Dickson 
♦Amasa  M.  Eaton 
♦G.  A.  Finkelnburg 
♦John  W.  Foster 
♦Theodore  S.  Garnett 

William  D.  Guthrie 
♦James  Hagerman 
♦Alfred  Hemenway  . 

Francis  J.  Heney    . 
♦John  Hinkley 

William  B.  Hornblower 
♦James  H.  Hoyt 

John  G.  Johnson    . 


St.  Louis,  Mo. 
Chicago,  111. 
Philadelphia,  Pa. 
Baltimore,  Md. 
St.  Louis,  Mo. 
Ft.  Wayne,  Ind. 
Washington,  D.  C. 
Washington,  D.  C. 
New  York,  N.  Y. 
Washington,  D.  C. 
New  York,  N.  Y. 
Detroit,  Mich. 
Chicago,  111. 
Boston,  Mass. 
Philadelphia,  Pa. 
Providence,  R.  I. 
St.  Louis,  Mo. 
Washington,  D.  C. 
Norfolk,  Va. 
New  York,  N.  Y. 
St.  Louis,  Mo. 
Boston,  Mass. 
San  Francisco,  Cal. 
Baltimore,  Md. 
New  York,  N.  Y. 
Cleveland,  Ohio. 
Philadelphia,  Pa. 


LIST    OF   DELEGATES 


281 


UNITED    STATES    OF   AMERICA  (continued) 

THE    GOVERNMENT   DELEGATES    (continued) 


(Eminent  Lawyers) 

♦Edward  Q.  Keasbey 
*Frank  B.  Kellogg  . 
♦Jacob  Klein    .... 
*E.  B.  Kruttschnitt 
♦Frederick  W.  Lehmann  . 
♦Charles  F.  Libby    . 

Isaac  H.  Lionberger 
♦Walter  S.  Logan     . 
♦Alvin  J.  McCrearv 
♦P.  W.  Meldrim 
♦Rodney  A.  Mercur 

John  Bassett  Moori: 
♦Charles  Nagel 
♦John  W.  Noble 

Thomas  Patterson  . 

George  R.  Peck 

Wheeler  H.  Peckham 

James  H.  Reed 
♦John  K.  Richards  . 
♦Edward  S.  Robert  . 
♦Platt  Rogers  .... 

Elihu  Root      .... 
♦George  B.  Rose 
♦Ferdinand  Shack     . 
♦George  M.  Sharp    . 

Benjamin  F.  Tracy 
♦Henry  St.  George  Tucker 

George  Turner 

Arthur  Von  Briesen 
♦Frederick  E.  Wadhams  . 

David  T.  Watson    . 
♦Everett  P.  Wheeler 

A.  S.  Worthington 


(continued) 

Newark,  N.  J. 
St.  Paul,  Minn. 
St.  Louis,  Mo. 
New  Orleans,  La. 
St.  Louis,  Mo. 
Portland,  Me. 
St.  Louis,  Mo. 
New  York,  N.  Y. 
Binghamton,  N.  Y 
Savannah,  Ga. 
Towanda,  Pa. 
New  York,  N.  Y. 
St.  Louis,  Mo. 
St.  Louis,  Mo. 
Pittsburg,  Pa. 
Chicago,  111. 
New  York,  N.  Y. 
Pittsburg,  Pa. 
Cincinnati,  Ohio. 
St.  Louis,  Mo. 
Denver,  Col. 
New  York,  N.  Y. 
Little  Rock,  Ark. 
New  York,  N.  Y. 
Baltimore,  Md. 
New  York,  N.  Y. 
Washington,  D.  C. 
Spokane,  Wash. 
New  York,  N.  Y. 
Albany,  N.  Y. 
Pittsburg,  Pa. 
New  York,  N.  Y. 
Washington,  D.  C. 


282      CONGRESS   OF  LAWYERS  AND   JURISTS 
UNITED    STATES    OF   AMERICA  (continued) 


DELEGATES    FROM    THE    JUDICIARY 

(This  list  comprises  those  judges  oj  the  Federal  courts  and  the  State 
and  Territorial  courts  of  last  resort  who  accepted  invitations  to  become 
members  0}  the  Congress.) 


Federal  Judges:^ 


Peter  S.  Grosscup  . 

♦William  C.  Hook  . 
William  W.  Morrow 

*Amos  M.  Thayer 

♦Willis  Van  Devanter 

*Elmer  B.  Adams 

♦Walter  Evans 
Eli  Shelby  Hammond 
Cornelius  H.  Hanford 
BENjAmN  F.  Keller 

♦Hiram  Knowles 
Smith  McPherson    . 

♦Thomas  J.  Morris  . 
William  H.  Munger 
William  T.  Newman 

♦John  F.  Philips 

♦John  C.  Pollock 
John  H.  Rogers 
Emory  Speer   . 
Albert  C.  Thompson 
Harry  T.  Toulmin  . 
Jacob  Trieber 
George  P.  Wanty   . 
Charles  B.  Howry 


Chicago,  111. 
St.  Paul,  Minn. 
San  Francisco,  Cal. 
St.  Louis,  Mo. 
Cheyenne,  Wyo. 
St.  Louis,  Mo. 
Louisville,  Ky. 
Memphis,  Tenn. 
Seattle,  Wash. 
Bramwell,  W.  Va. 
Missoula,  Mont. 
Red  Oak,  Iowa. 
Baltimore,  Md. 
Omaha,  Neb. 
Atlanta,  Ga. 
Kansas  City,  Mo. 
Topeka,  Kan. 
Fort  Smith,  Ark. 
Macon,  Ga. 
Cincinnati,  Ohio. 
Mobile,  Ala. 
Little  Rock,  Ark. 
Grand  Rapids,  Mich. 
Washington,  D.  C. 


'  Exclusive  of  the  Chief  Justice  and  Associate  Justices  of  the  Supreme  Court 
of  the  United  States,  the  presiding  judges  of  the  United  States  Circuit  Court  of 
Appeals,  the  Appellate  Courts  of  the  District  of  Columbia,  the  Courts  of  the 
Territories,  and  the  Court  of  Claims,  who  were  named  by  President  Roosevelt 
as  Government  Delegates,  and  will  be  found  listed  under  that  head. 


LIST    OF   DELEGATES 


283 


UNITED    STATES    OF   AMERICA  (continued) 

DELEGATES    FROM    THE    JUDICIARY    (continued) 


Judges  of  State  Appellate  Courts 

James  F.  Ailshie 
*George  W.  Bartch 

B.  B.  Battle   . 
*R.  S.  Bean 
*W.  D.  Beard   . 
♦Joseph  A.  Breaux  . 
*JoHN  P.  Briscoe 

T.  J.  Brown    . 

Henry  G.  Bunn 

H.  E.  Deemer 
♦Robert  M.  Douglas 

LuciLius  A.  Emery  . 

D.  Newlin  Fell 

David  Fowler 

*  J  AMES  D.  Fox 

*  James  B.  Gantt 
Claudius  B.  Grant 
Ignatius  C.  Grubb  . 
Hiram  E.  Hadley    . 
Albert  Haight 
Dick  Haney     . 
W.  A.  Johnston 
W.  K.  McAlister    . 
Emlin  McClain 
Benjamin  D.  Magruder 
Henry  F.  Mason 

♦Leslie  S.  Mestrezat 
♦Joseph  B.  Moore     . 

John  R.  Nicholson 

Denis  O'Brien 

James  A.  Pearce 

Charles  N.  Potter 
♦William  P.  Potter  . 

Oliver  O.  Provosty 

Thomas  M.  Shackelford 


of  Last  Resort: 

Boise,  Idaho. 
Salt  Lake  City,  Utah. 
Little  Rock,  Ark. 
Salem,  Ore. 
Nashville,  Tenn. 
Baton  Rouge,  La. 
Prince  Frederick,  Md. 
Austin,  Tex. 
Little  Rock,  Ark. 
Des  jMoines,  Iowa. 
Raleigh,  N.  C. 
Augusta,  Me. 
Harrisburg,  Pa. 
AnnapoHs,  Md. 
Jefferson  City,  Mo. 
Jefferson  City,  Mo. 
Lansing,  Mich. 
Dover,  Del. 
Olympia,  Wash. 
Albany,  N.  Y. 
Pierre,  S.  D. 
Topeka,  Kan. 
Nashville,  Tenn. 
Des  Moines,  Iowa. 
Springfield,  111. 
Topeka,  Kan. 
Philadelphia,  Pa. 
Lansing,  Mich. 
Dover,  Del. 
Albany,  N.  Y. 
Annapohs,  Md. 
Cheyenne,  Wyo. 
Harrisburg,  Pa. 
Baton  Rouge,  La. 
Tallahassee    Fla. 


284      CONGRESS   OF   LAWYERS  AND   JURISTS 


UNITED    STATES    OF    AMERICA  (continued) 

DELEGATES    FROM   THE    JUDICIARY  (continued) 

Judges  oj  State  Appellate  Courts  oj  Last  Resort  (continued): 


♦William  R.  Smith    . 

*\\tlliam  T.  Spear  . 
Robert  W.  Steele  . 
John  H.  Stiness 

♦Charles  O.  Stock  lager 
Irving  G.  Vann 
Albert  H.  Whitfield 
Charles  E.  Wolverton 
C.  A.  Woods    . 


Territorial  J  iidges : 


Joe  Barnard   . 

Edward  F.  Bingham 
♦John  H.  Burford    . 
♦b.  f.  burwell 
♦Fletcher  M.  Doan 

W.  S.  Edings  - 

C.  A.  Galbraith 

Joseph  A.  Gill 
♦F.  E.  Gillette 
♦Bayard  T.  Hainer  . 

William  H.  Holt     . 
♦W.  R.  Lawrence 

Gilbert  F.  Little   . 

John  R.  McFie 

William  J.  Mills     . 

Martin  F.  Morris  . 

J.  L.  Pancoast 

Charles  W.  Raymond 

Seth  Shepard 

P.    L.    SOPER 

Louis  Sulzbacher    . 


Topeka,  Kan. 
Columbus,  Ohio. 
Denver,  Colo. 
Providence,  R.  I. 
Hailey,  Idaho. 
Albany,  N.  Y. 
Jackson,  Miss. 
Salem,  Ore. 
Marion,  S.  C. 


Washington,  D.  C. 
Washington,  D.  C. 
Guthrie,  Okla. 
El  Reno,  Okla. 
P'lorence,  Ariz. 
Kailua,  H.  I. 
Honolulu,  H.  I. 
Vinita,  I.  T. 
Kingfisher,  Okla. 
Perry,  Okla. 
San  Juan,  P.  R. 
Vinita,  I.  T. 
Hilo,  Hawaii. 
Santa  Fe,  N.  M. 
Las  Vegas,  N.  M. 
Washington,  D.  C. 
Alva,  Okla. 
Muscogee,  I.  T. 
Washington,  D.  C. 
Vinita,  I.  T. 
Muscogee,  I.  T. 


LIST    OF    DELEGATES 


>8.:; 


UNITED    STATES    OF    AMERICA  (continued) 

DF.I.KGATKS  FROM  THE  AMERICAN  BAR  ASSOCIATION 

(One  hundred  in  number.) 


*OscAR  R.  Hundley 


♦Robert  W.  Jennings 


Alabama. 


Alaska  Territory. 


Irizona  Territory. 


Everett  E.  Ellin  wood 


*JoHN  Fletcher 


Arkansas. 


Colorado. 


Kurnel  R.  Babbitt 
*Lucius  W.  Hoyt     .... 

*ThOMAS    J.    O'DONNELL     . 

*Edwin  Van  Cise     .... 
Charles  W.  Waterman  . 

Connecticut. 
Edward  Avery  Harriman 


Benjamin  Nields 

♦Melville  Church 
Henry  E.  Davis 
Nathaniel  Wilson 

William  A.  Blount 

*B.  F.  Abbott 


Delaware. 


District  of  Colnmhia. 


Florida. 

Georgia. 

Hawaii  Territory. 


David  L.  Withington 


Huntsville. 

Skagway. 

Present  t. 

Little  Rock. 

Colorado  Springs. 

Denver. 

Denver. 

Denver. 

Denver. 

Derby. 

Wilmington. 

Washington. 
Washington. 
Washington. 

Pensacola. 

Atlanta. 

Honolulu. 


286      CONGRESS   OF  LAWYERS  AND   JURISTS 


UNITED    STATES    OF    AMERICA  (continued) 

DELEGATES    FROM   THE    AMERICAN    BAR   ASSOCIATION  (continued) 


William  W.  Woods 


*George  a.  Follansbee 
Stephen  S.  Gregory 
John  S.  Runnells 
Edwin  Burritt  Smith 
John  H.  Wigmore 


Idaho. 


Illinois. 


♦Joseph  G.  Ralls 


♦Merrill  Moores    . 
*JoHN  Morris 
*Truman  F.  Palmer 


A.  B.  Cummins 
David  B.  Henderson 


Balie  p.  Waggener 


W.  O.  Harris 


♦Thomas  J.  Kern  an 


♦Hannibal  E.  Hamlin 


♦Richard  M.  Venable 
♦George  Whitelock 
Stevenson  A.  Williams 


Indian  Territory. 


Indiana. 


Iowa. 


Kansas. 


Kentucky. 


Louisiana. 


Maine. 


Maryland. 


Wallace. 

Chicago. 
Chicago. 
Chicago. 
Chicago. 
Chicago. 

Atoka. 


Indianapolis. 
Fort  Wayne. 
Monticello. 


Des  Moines. 
Dubuque. 

Atchison. 

Louisville. 


Baton  Rouge. 


Ellsworth. 


Baltimore. 
Baltimore. 
Bel  Air. 


LIST    OF   DELEGATES 


287 


UNITED    STATES    OF    AMERICA  (continued) 

DELEGATES    FROM   THE    AMERICAN    BAR    ASSOCIATION  (continued) 


Massachusetts. 


Charles  W.  Clifford 
Henry  S.  Dewey    . 
Frederick  P.  Fish 

*WlLLIAM   SCHOFIELD 


*WiLLiAM  L.  January 
Thomas  J.  O'Brien 

*RoME  G.  Brown     . 
R.  H.  Thompson     . 


Michigan. 


Minnesota. 


Mississippi. 


Missouri. 


*Paul  Bakewell 
*Alexander  G.  Cochran 
*Edward  C.  Eliot  . 
*Frank  Hagerman   . 
♦Frederick  N.  Judson     . 
*Selden  p.  Spencer 
*Charles  O.  Tichenor    . 


Wilbur  F.  Sanders 


Edmund  M.  Bartlett 
*Irving  F.  Baxter  . 


Montana. 


Nebraska. 


Frank  S.  Streeter 


*  J  AMES  J.  Bergen    . 
R.  Wayne  Parker 


New  Hampshire. 


New  Jersey. 


New  Bedford. 
Boston. 
Boston. 
Boston. 


Detroit. 
Grand  Rapids. 

Minneapolis. 


Jackson. 


St.  Louis. 
St.  Louis. 
St.  Louis. 
Kansas  City. 
St.  Louis. 
St.  Louis. 
Kansas  Citv. 


Helena. 


Omaha. 
Omaha. 


Concord. 


Somerville. 
Newark. 


288      CONGRESS   OF   LAWYERS   AND    JURISTS 


UNITED    STATES    OF    AMERICA  (continued) 

DELEGATES    FROM    THE    AMERICAN    BAR    ASSOCIATION  (continued) 


New  Mexico  Territorv. 


♦Thomas  B.  Catron 


Santa  Fe. 


New  York. 


♦Robert  D.  Benedict 
♦Henry  D.  Estabrook 

Austin  G.  Fox 

Adrian  H.  Joline  . 

William  Platt  Rudd 

Ansley  Wilcox 


New  York. 
New  York. 
New  York. 
New  York. 
Albany. 
Buffalo. 


♦John  L.  Bridgers 


Andrew  A.  Bruce 


North  Carolina. 


North  Dakota. 


Tarboro. 


Grand  Forks. 


♦Charles  M.  Hepburn     . 
♦Francis  B.  James  . 
♦Lawrence  Maxwell,  Jr. 
♦Andrew  Squire 


Ohio. 


Cincinnati. 
Cincinnati. 
Cincinnati. 
Cleveland. 


Oklahoma  Territorv. 


Henry  E.  Asp 


Guthrie. 


Oregon. 


♦Charles  H.  Carey 


Pennsylvania. 
Hampton  L.  Carson 
John  Cadwalader 
George  W.  Guthrie 
♦W.  U.  Hensel,  Chairman 
Alexander  Simpson,  Jr. 
Walter  George  Smith  . 


Portland. 


Philadelphia. 

Philadeljjhia. 

Pittsburg. 

Lancaster. 

Philadelphia. 

Philadelphia. 


LIST   OF    DELEGATES 


289 


UNITED    STATES    OF   AMERICA  (continued) 

DELEGATES    FROM    THE    AMERICAN    BAR    ASSOCIATION  (continued) 


Philippine  Islands. 
David  Walker  Yancey 


Charles  A.  Woods 

*CoE  I.  Crawford  . 

*Henry  H.  Ingersoll 

*T.  S.  Miller 
*J.  W.  Terry  . 

*Charles  S.  Varian 

*Elihu  B.  Taft 


South  Carolina. 


South  Dakota. 


Tennessee. 


Texas. 


Utah. 


Vermont. 


Virginia. 


A.  C.  Braxton 
William  A.  Glasgow,  Jr. 
Alexander  Hamilton     . 
S.  S.  P.  Patteson 


Charles  E.  Shepard 


W.  W.  Van  Winkle 


Washington. 


West  Virginia. 


Wisconsin. 


Burr  W.  Jones 
Frederick  C.  Winkler  . 


Wyoming. 


Josiah  a.  Van  Orsdel 


Manila. 


Marion. 


Huron. 


Knoxville. 


Dallas. 
Galveston. 


Salt  Lake  City. 
Burlington. 


Staunton. 
Roanoke. 
Petersburg. 
Richmond. 


Seattle. 

Parkersburg. 

Madison. 
Milwaukee. 

Cheyenne. 


290     CONGRESS   OF  LAWYERS   AND   JURISTS 
UNITED    STATES    OF    AMERICA   (continued) 

DELEGATES  FROM  STATE  AND  TERRITORIAL  BAR  ASSOCIATIONS 

{Equal  in  number  to  the  representation  oj  the  particular  State  in 
the  House  of  Representatives  0}  the  United  States,  but  each  State  or 
Territory  entitled  to  a  minimum  oj  five.) 


Alabama  State  Bar  Association 

♦Edward  de  Graffenried 
♦Samuel  D.  Weakley 

James  Weatherly 

George  P.  Harrison 
♦Lawrence  Cooper 
♦Frederick  C.  Bromberg 
♦William  H.  Thomas 
♦Thomas  R.  Roulhac 
♦Alexander  Troy    . 

Bar  Association  0}  Arizona. 

♦Ben  Goodrich 
♦F.  H.  Hereford 
♦William  H.  Barnes 
♦George  D.  Christy 
♦John  J.  Hawkins   . 

Bar  Association  oj  .Arkansas. 

♦Allen  Hughes 
♦James  F.  Read 
♦J.  W.  House  . 
♦H.  M.  Armistead    . 
♦Joseph  M.  Hill 
♦Thomas  B.  Martin 
♦Joseph  M.  Stayton 


Greensboro. 

Birmingham. 

Birmingham. 

Opelika. 

Huntsville. 

Mobile. 

Montgomery. 

Sheffield. 

Montgomery, 


Tombstone. 

Tucson. 

Tucson. 

Phoenix. 

Prescott. 


Jonesboro. 
Fort  Smith. 
Little  Rock. 
Little  Rock. 
Fort  Smith. 
Little  Rock. 
Newport. 


Calijornia  State  Bar  Association. 

♦Charles  H.  B.\ne  .....         San  Francisco. 
♦William  J.  Hunsaker     ....         Los  Angeles. 


LIST    OF   DELEGATES 


291 


UNITED    STATES    OF    AMERICA  (continued) 

STATE    AND    TERRITORIAL    BAR    ASSOCIATIONS  (continued) 

Colorado  Bar  Association. 

Julius  B.  Bissell Denver. 

*L.  M.  CuTHBERT Denver. 

*Charles  E.  Gast Pueblo. 

*William  V.  Hodges         ....  Denver. 

*Henry  T.  Rogers  .         .         .         .         .  Denver. 

Bar  Association  of  the  District  of  Columbia. 
*Jackson  H.  Ralston       ....        Washington. 

William  F.  Mattingly  ....         Washington. 

Nathaniel  Wilson  ....         Washington. 

Frederic  D.  McKenney          .         .         .         Washington. 
*Henry  p.  Blair Washington. 


Georgia  Bar  Association. 

Henry  C.  Cunningham  . 
*j.  e.  donalson 

h.  r.  goetchius    . 

B.  H.  Hill     .... 

Washington  Dessau 
*JoEL  Branham 

Thomas  G.  Lawson 
*J.  C.  C.  Black 

W.  M.  Hammond    . 
*W.  E.  Simmons 

O.  A.  Park     .... 

Bar  Association  of  Hawaii. 
♦William  R.  Castle         .... 
Robert  W.  Breckons     .... 
William  L.  Stanley       .... 


Savannah. 

Bainbridge. 

Columbus. 

Atlanta. 

Macon. 

Rome. 

Eatonton. 

Augusta. 

Thomasville. 

Lawrenceville. 

Macon. 


Honolulu. 
Honolulu. 
Honolulu. 


Illinois  State  Bar  Association. 
James  B.  Bradwell        ....         Chicago. 

Jesse  Holdom Chicago. 

♦Frank  Asbury  Johnson.         .         .         .         Chicago. 


292      CONGRESS   OF   LAWYERS  AND   JURISTS 


UNITED    STATES    OF    AMERICA  (continued) 

STATE    AND    TERRITORIAL    BAR    ASSOCIATIONS  (continued) 


Illinois  State  Bar  Association  (continued) 

John  S.  Miller 

Chicago. 

Adolph  Moses 

Chicago. 

♦SiGMUND    ZeISLER       . 

Chicago. 

John  Maynard  Harlan. 

Chicago. 

Arthur  J.  Eddy     . 

Chicago. 

Charles  H.  Hamill 

Chicago. 

♦Henry  V.  Freeman 

Chicago. 

William  L.  Gross 

Springfield. 

*Benson  Wood 

Effingham. 

*John  S.  Stevens     . 

Peoria. 

♦Alfred  Orendorf 

Springfield. 

♦James  M.  Riggs      . 

Winchester. 

♦George  T.  Page    .... 

Peoria. 

♦E.  p.  Williams 

Galesburg. 

Lester  H.  Strawn 

Ottawa. 

♦John  F.  Voigt,  Jr. 

Mattoon. 

♦George  F.  McNulty 

East  St.  Louis 

♦William  R.  Hunter 

Kankakee. 

♦William  R.  Curran 

Pekin. 

George  W.  Gere  . 

Champaign. 

♦Oliver  A.  Harker 

Carbondale. 

♦James  H.  Matheny 

Springfield. 

Indian  Territory  Bar  Association. 
C.  L.  Herbert        .....         Ardmore. 


N.  A.  Gibson 
♦W.  P.  Freeman 
♦J.  F.  Sharp    . 

F.  H.  Kellogg 


Indiana  Bar  Association. 

♦Charles  S.  Baker  .... 

♦George  A.  Cunningham 
♦Theodore  P.  Davis        .... 
♦Edwin  P.  Hammond        .... 


Muscogee. 
South  McAlester. 
Purcell. 
South  McAlester. 


Columbus. 
Evansville. 
Indianapolis. 
Lafayette. 


LIST    OF   DELEGATES 


293 


UNITED    STATES    OF    AMERICA  (continued) 

STATE    AND    TERRITORIAL    BAR    ASSOCIATIONS  (continued) 


Indiana  Bar  Association 
*Addison  C.  Harris 
*Charles  L.  Jewett 

Edward  Daniels    . 
*Thomas  E.  Ellison 

Samuel  Parker 
♦Samuel  O.  Pickens 
*  J  AMES  H.  Rose 
*Samuel  M.  Sayler 

William  L.  Taylor 
*Henry  B.  Tuthill 

*WlLLIAM    J.    VeSEY   . 

*Dan  W.  Simms 


(continued) 

Indianapolis. 
New  Albany. 
Indianapolis. 
Fort  Wayne. 
Plymouth. 
Indianapolis. 
Auburn. 
Huntington. 
Indianapolis. 
Michigan  City. 
Fort  Wayne. 
Lafayette. 


Iowa  State 

Edgar  A.  Morling 

H.  K.  Evans  . 
*C.  C.  Cole  . 
*L.  C.  Blanchard    . 

J.  L.  Carney 
*J.  O.  Crosby 
*WiLLiAM  Hoffman  . 

*H.    M.    ElCHER 

S.  M.  Weaver 
Scott  M.  Ladd 
H.  E.  Deemer 
H.  M.  Towner 


Bar  Association. 


Emmetsburg. 

Corydon. 

Des  Moines. 

Oskaloosa. 

Marshalltown. 

Garnaville. 

Muscatine. 

Washington. 

Iowa  Falls. 

Sheldon. 

Red  Oak. 

Corning. 


* 


J.  C. 


Bar  Association  of  the  State  of  Kansas. 
Slonecker     .....         Topeka. 


Otto  G.  Eckstein  . 
*J.  W.  Green 
*J.  D.  Milliken 
*Winfield  Freeman 
*JoHN  H.  Crain 

Fred  Dumont  Smith 
*R.  W.  Turner 


Wichita. 

Lawrence. 

McPherson. 

Kansas  City. 

Fort  Scott. 

Kinsley. 

Mankato. 


294     CONGRESS   OF   LAWYERS  AND   JURISTS 


UNITED    STATES    OF    AMERICA  (continued) 

STATE    AND    TERRITORIAL    BAR    ASSOCIATIONS  (continued) 


Kentucky  Stale  Bar  Association. 

*J.   C.    DOOLAN 

Louisville. 

*Jep  C.  Jonson 

. 

Greenville. 

John  S.  Kelley 

Bardstown. 

♦Lewis  McQuown 

Bowling  Green 

L.  A.  Faurest 

Elizabethtown. 

E.  J.  McDermott 

Loui.sville. 

*W.  C.  Hall    . 

Covington. 

*D.  L.  Thornton 

Versailles. 

J.  R.  Morton 

• 

Lexington. 

John  F.  Hager 

Ashland. 

L.  C.  Willis  . 

Shelbyville. 

Louisiana  Bar  Association. 

*JoHN  D.  Rouse 

New  Orleans. 

*Ernest  B.  Kruttschnitt 

. 

New  Orleans. 

William  Wirt  Howe 

. 

New  Orleans. 

♦Robert  J.  Perkins 

. 

New  Orleans. 

♦William  S.  Benedict 

- 

New  Orleans. 

Maine  State  Bar  Association. 

Joseph  W.  Symonds        .... 

Portland. 

Llewellyn  Powers 

. 

Houlton. 

*JoHN  A.  Morrill  . 

> 

Auburn. 

♦Leslie  C.  Cornish 

, 

Augusta. 

♦Hugh  R.  Chaplin 

. 

Bangor. 

Maryland  State  Bar  Association. 
♦William  L.  Marbury     ....         Baltimore. 


George  L.  Van  Bibber 
♦Edgar  H.  Gans 

Ferdinand  Williams 
♦Philemon  H.  Tuck 
♦Alfred  S.  Niles     . 


Bel  Air. 

Baltimore. 

Cumberland. 

Baltimore. 

Baltimore. 


LIST    OF    DELEGATES 


295 


UNITED    STATES    OF    AMERICA  (continued) 

STATE   AND    TERRITORIAL    BAR    ASSOCIATIONS   (continued) 

State  Bar  Association. 


Michigan 

Michael  Brennan 
*Clark  E.  Baldwin 
*Dallas  Boudeman 

Phillip  T.  Colgrove 

Frank  D.  M.  Davis 

Russell  C.  Ostrander 

Lincoln  Avery 

Lorenzo  T.  Durand 

Aaron  \''.  McAlvay 

Theodore  F.  Shepard 

Charles  W.  Perry 

Dan  H.  Ball 

Minnesota  State  Bar 
*Lyndon  a.  Smith  . 
*Jed  L.  Washburn  . 
Charles  B.  Elliott 
*M.  B.  KooN   . 
*Hascal  R.  Brill    . 
*Daniel  Fish  . 
♦Albert  Schaller    . 
*julius  coller 
*Henry  Deutsch 


Detroit. 

Adrian. 

Kalamazoo. 

Hastings. 

Ionia. 

Lansing. 

Port  Huron. 

Saginaw. 

Manistee. 

Bay  City. 

Clare. 

Marquette. 

Association. 

Montevideo. 

Duluth. 

Minneapolis. 

Minneapolis. 

St.  Paul. 

Minneapolis. 

Hastings. 

Shakopee. 

Minneapolis. 


Missouri  Bar  Association. 
♦Warwick  Hough    . 
*D.  D.  Fisher 

H.  S.  Priest  . 
*A.  M.  Woodson 
*C.  A.  Mosman 
*0.  M.  Spencer 
*Sanford  B.  Ladd  . 
*W.  B.  Teasdale     . 

Thomas  A.  Sherwood 
*Henry  Lamm 
*\\'.  M.  Williams     . 


St.  Louis. 
St.  Louis. 
St.  Louis. 
St.  Joseph. 
St.  Joseph. 
St.  Joseph. 
Kansas  City. 
Kansas  City. 
Springfield. 
Sedalia. 
Boonville. 


296     CONGRESS   OF  LAWYERS  AND   JURISTS 


UNITED    STATES    OF    AMERICA  (continued) 

STATE    AND    TERRITORIAL    BAR    ASSOCIATIONS   (continued) 

Missouri  Bar  Association  (continued) 
♦George  Robertson         ....         Mexico. 

A.  D.  Burns Platte  City. 

R.  F.  Roy New  London. 

B.  G.  Thurman      .....         Lamar. 
*J.  J.  Russell  .....         Charleston. 

Nebraska  State  Bar  Association. 

*C.  B.  Letton Fairburg. 

*RoscoE  Pound Lincoln. 

♦John  L.  Webster  .....  Omaha. 

Samuel  P.  Davidson       ....  Tecumseh. 

♦Ralph  W.  Breckenridge         .         .         .  Omaha. 

♦John  N.  Dryden    .....  Kearney. 

♦William  G.  Hastings      ....  Wilber. 

♦Willis  D.  Oldham  ....  Kearney. 

Bar  Association  oj  the  State  0}  New  Hampshire. 

Arthur  H.  Chase Concord. 

Joseph  Madden      .....         Keene. 

New  Jersey  State  Bar  Association. 
♦James  J.  Bergen    .....         Somerville. 


R.  Wayne  Parker . 

J.  Kearny  Rice 
♦John  R.  Hardin     . 

Charles  C.  Black  _ 

Norman  Grey 
♦Clarence  L.  Cole 

Charles  H.  Hartshorne 

E.  M.  COLIE 

Ne%u  Mexico  Bar  Association. 
William  J.  Mills  . 
Benjamin  S.  Baker 
W.  A.  Hawkins 
W.  C.  Wrigley 
♦A.  A.  Jones    . 


Newark. 
New  Brunswick. 
Newark. 
Jersey  City. 
Camden. 
Atlantic  City. 
Jersey  City. 
Newark. 

Las  Vegas. 

Albuquerque. 

Alamogordo. 

Raton. 

East  Las  Vegas. 


LIST    OF    DELEGATES 


297 


UNITED    STATES    OF    AMERICA  (continued) 

STATE    AND    TERRITORIAL    BAR    ASSOCIATIONS  (continued) 


New  York  State  Bar  Association 

David  B.  Hill  .... 
*George  M.  Diven 

J.  Newton  Fiero   .... 

Tracy  C.  Becker  .... 

Edward  G.  Whitaker    . 

Simon  W.  Rosendale 

John  G.  Milburn  .... 

Edward  M.  Shepard 

Cephas  Brainerd  .... 

Edward  W.  Sheldon 

Louis  Marshall     .... 
♦Solomon  Hanford 
*Edward  a.  Sumner 
♦Charles  Bulkly  Hubbell 

John  F.  Clarke     .... 
♦Frank  Harvey  Field 
♦Frederick  E.  Crane 
♦Grenville  M.  Ingalsbe 

Smith  JNI.  Lindsley 

James  T.  Rogers  .... 
♦Ernest  W.  Huffcut 

C.  W.  H.  Arnold  .... 

Lewis  E.  Carr  .... 
♦Alphonso  T.  Clearwater 

Edward  W.  Douglas 

Elbridge  L.  Adams 

Adolph  J.  Rodenbeck    . 

Pliny  T.  Sexton  .... 
♦W.  Martin  Jones  .... 
♦Ralph  Kellogg      .... 

♦E.  C.  Aiken 

♦Jared  T.  Newman 

♦E.  D.  Ronan  .... 

Adelbert  Moot      .... 

Martin  Carey        .... 


Albany. 

Elmira. 

Albany. 

Buffalo. 

New  York. 

Albany. 

New  York 

New  York. 

New  York. 

New  York. 

New  York. 

New  York. 

New  York. 

New  York. 

Brooklyn. 

New  York. 

Brooklyn. 

Sandy  Hill. 

Utica. 

Binghampton. 

Ithaca. 

Poughkeepsie. 

Albany. 

Kingston. 

Troy. 

Rochester. 

Rochester. 

Palmyra. 

Rochester. 

Buffalo. 

Auburn. 

Ithaca. 

Albany. 

Buffalo. 

Buffalo. 


298      CONGRESS   OF   LAWYERS   AND    JURISTS 
UNITED   STATES    OF    AMERICA  (continued) 

STATE    AND   TERRITORIAL    BAR    ASSOCIATIOXS   (continued) 

New  York  State  Bar  Association  (continued) 

Albert  Hessberg   .....         .Albany. 

*SiMOX  Fleisph-mann         ....         Buffalo. 

*DoNALD  McLean    .....         New  York. 


North  Carolina  Bar  Association. 


W.  D.  Pruden 

Edenton. 

James  E.  Boyd 

Greensboro. 

♦Clement  Manly     . 

Winston. 

*Fred  a.  Woodard 

Wilson. 

L.  H.  Clement 

Salisbury. 

*R.  B.  Redwine 

Monroe. 

*J.  Crawford  Biggs 

Durham. 

C.  S.  Vann     . 

Edenton. 

♦Lindsay  Patterson 

Winston. 

George  H.  Brown 

Washington 

*A.  B.  Andrews,  Jr. 

Raleigh. 

*F.  P.  Hobgood,  Jr. 

Greensboro. 

Ohio  State  Bar  Association. 

*J.  W.  Bannon 

Portsmouth 

*S.  0.  Bayless 

Cincinnati. 

*H.  J.  Booth  . 

Columbus. 

Harlan  F.  Burkett 

Findlay. 

J.  B.  Burroughs    . 

Painesville. 

Albert  Douglas     . 

Chillicothe. 

*JoHN  H.  Doyle 

Toledo. 

*L.  C.  Laylin 

Norwalk. 

U.  L.  Marvin 

Akron. 

W.  H.  A.  Read 

Toledo. 

♦William  T.  Spear  . 

Warren. 

*J.  T.  Holmes 

Columbus. 

*JoHN  N.  Van  Deman 

Dayton. 

*A.  T.  Vorys     . 

Lancaster. 

S.  S.  Wheeler 

Lima. 

Wade  H.  Ellis 

Cincinnati. 

LIST    OF   DELEGx\TES 


299 


UNITED    STATES    OF    AMERICA  (continued) 

STATK    AND    TERRITORIAL    BAR    ASSOCIATIONS   (continued) 

Oil  10  State  Bar  Association  (continued) 


John  C.  Hale 
*t.  h.  hogsett 

E.  H.  Hopkins 
*Edward  Kibler 
*Edmund  B.  King 


Cleveland. 

Cleveland. 

Cleveland. 

Nevi^ark. 

Sandusky. 


Oklahoma  Bar  Association. 

C.  B.  Ames 
*M.  J.  Kane    . 
*S.  H.  Harris  . 
*Paul  F.  Mackey     . 

S.  M.  Cunningham 

Pennsylvania  Bar  Association. 
*RoBERT  Ralston     . 

Samuel  W.  Pennypacker 
*  William  H.  Staake 

John  B.  Colahan,  Jr.     . 
*HowARD  W.  Page  . 
♦Montgomery  Evans 
*H.  S.  Prentiss  Nichols 
*Joseph  p.  McKeehan     . 

J.  Hay  Brown 

Everett  Warren    . 

Charles  E.  Rice    . 

D.  C.  Henning 
Alonzo  T.  Searle  . 

*voris  auten  . 

George  B.  Orlady 
♦William  N.  Hargest 
*JoHN  H.  Jordan     . 
*Henry  C.  Niles     - 
♦Nathaniel  Ewing  . 

J.  Norman  Martin 

Edward  J.  Fox 


Oklahoma  City. 

Kingfisher. 

Perrv. 

Pond  Creek. 

Lawton. 


Philadelphia. 

Harrisburg. 

Philadelphia. 

Philadelphia. 

Philadelphia. 

Norristown. 

Philadelphia. 

Carlisle. 

Lancaster. 

Scranton. 

Wilkesbarre. 

Pottsville. 

Honesdale. 

Mt,  Carmel. 

Huntington. 

Harrisburg. 

Bedford. 

York. 

Uniontown. 

Newcastle. 

Easton. 


300     CONGRESS   OF   LAWYERS   AND   JURISTS 


UNITED    STATES    OF    AMERICA  (continued) 

STATE    AND    TERRITORIAL    BAR    ASSOCIATIONS  (continued) 


Pennsylvania  Bar  Association 

Ross  Reynolds 
♦Charles  W.  Stone 

Robert  S.  Frazer  . 
♦William  Scott 

Clarence  Burleigh 

William  H.  McClung 

Theodore  F.  Jenkins 
♦George  F.  Baer    . 
♦Russell  C.  Stewart 

John  Stewart 

C.  H.  RUHL     . 


(continued) 

Kittanning. 

Warren. 

Pittsburg. 

Pittsburg. 

Pittsburg. 

Pittsburg. 

Philadelphia. 

Philadelphia. 

Easton. 

Chambersburg. 

Reading. 


Philippine  Bar  Association. 
(Colegio  de  Abogados  de  Filipinas.) 

Cayetano  Arellano        ....         Manila. 


ViCTORIANO   MapA     . 

John  T.  McDonough 
Charles  Willard  . 
Juan  Sumulong 
ToMAS  G.  del  Rosario  . 
Oscar  Sutro  . 


Manila. 
Manila. 
Manila. 
Manila. 
Manila. 
Manila. 


South  Carolina  Bar  Association. 


J.  E.  McDonald  ..... 
♦W.  G.  Belser 

D.  S.  Henderson    ..... 

J.  H.  Hudson 

♦Washington  Clark  .... 
♦Hunter  A.  Gibbs   ..... 

South  Dakota  Bar  Association. 
Bartlett  Tripp 
♦Thomas  Sterling 
H.  R.  Horner 
W.  G.  Rice    . 
J.  H.  Voorhees 


Winnsboro. 

Columbia. 

Aiken. 

Bennettsville. 

Columbia. 

Columbia. 


Yankton. 
Redfield. 
Pierre, 
Deadwood. 
Sioux  Falls. 


LIST    OF   DELEGATES 


301 


UNITED    STATES    OF    AMERICA  (continued) 

STATE    AND    TERRITORIAL    BAR    ASSOCIATIONS  (continued) 


Bar  Association  of  Tennessee. 

E.  Baxter 

J.   W.   JUDD       . 

J.  C.  Bradford 
J.  J.  Vertrees 

*J.   S.   PiLCHER 

J.  W.  Bonner 

J.  H.  Malone 
*W.  D.  Beard 
*H.  C.  Warriner 

M.  B.  Trezevant 

F.  H.  Heiskell 
*C.  W.  Metcalf 
*E.  T.  Sanford 

G.  W.  Pickle 
R.  M.  Barton,  Jr 
W.  G.  M.  Thomas 
Frank  Spurlock 
J.  W.  Moore 
C.  J.  St.  John 

Texas  Bar  Association 

Rhodes  S.  Baker   . 

A.  L.  Beaty   . 
*W.  L.  Crawford     . 

Thomas  H.  Franklin 

James  E.  Hill 

A.  E.  Wilkinson     . 

W.  G.  Sears  . 
*W.  W.  Searcey 
♦William  H.  Burgess 
*H.  C.  Carter 
*M.  A.  Spoonts 
*R.  E.  L.  Saner 
*Wyndham  Kemp 
*S.  R.  Blake    . 


Nashville. 

Nashville. 

Nashville. 

Nashville. 

Nashville. 

Nashville. 

Memphis. 

Memphis. 

Memphis. 

Memphis. 

Memphis. 

Memphis. 

Knoxville. 

Knoxville. 

Chattanooga. 

Chattanooga. 

Chattanooga. 

Brownsville. 

Bristol. 


Dallas. 

Sherman. 

Beaumont. 

San  Antonio. 

Livingston. 

Austin. 

Houston. 

Brenham. 

El  Paso. 

San  Antonio. 

Ft.  Worth. 

Dallas. 

El  Paso. 

BellviUe. 


302      CONGRESS   OF   LAWYERS  AND   JURISTS 


UNITED    STATES    OF    AMERICA  (continued) 

STATE    AND    TERRITORIAL    BAR    ASSOCIATIONS   (continued) 

Texas  Bar  Association  (continued) 

*J.  S.  Hogg      ......         Austin. 

♦Robert  G.  Street  ....         Galveston. 

Virginia  State  Bar  Association. 
William  A.  Anderson     ....         Lexington. 


Samuel  C.  Graham 
♦Marshall  McCormick 

Richard  B.  Tunstall 
♦Theodore  S.  G.\rnett 
♦Samuel  Griffin 

J.  K.  M.  Norton    . 
♦Joseph  L.  Kelly    . 
♦C.  F.  Moore  . 
♦William  E.  Barrett 


Tazewell. 
Berry  ville. 
Norfolk. 
Norfolk. 
Bedford  City. 
Alexandria. 
Bristol. 
Covington. 
Newport  News. 


Washington  State  Bar  Association. 


Will  H.  Thompson 

Joseph  Shippen 

Carroll  B.  Graves 
♦Edward  Whitson  . 
♦Alfred  L.  Black    . 

West  Virginia  Bar  Association. 

♦J.  W.  Vandervort 
♦Thomas  P.  Jacobs 
♦Henry  M.  Russell 
♦Wesley  Mollohan 
♦Charles  J.  Faulkner 


Seattle. 
Seattle. 
Ellensburg. 
North  Yakima. 
Bellingham. 


Parkersburg. 
New  Martins\  ille. 
Wheeling. 
Charleston. 
Martinsburg. 


State  Bar  Association  oj  Wisconsin. 
John  C.  Ludwig     .....         Milwaukee. 


♦Alfred  L.  Cary 
♦A.  A.  Jackson 
♦H.  H.  Grace  . 
♦L.  J.  Nash     . 
♦M.  A.  Hurley 


Milwaukee. 

Janesville. 

Superior. 

^lanitowoc. 

Wausau. 


LIST    OF    DELEGATES 


303 


UXITED    STATES    OF    AMERICA  (continued) 

STATE    AND    TERRITORIAL    BAR    ASSOCIATIONS  (continued) 

State  Bar  Association  0;  Wisconsin  (continued) 

*\V.  D.  TARR.A.XT       .....  Milwaukee. 

♦George  H.  Xo'i'ES  .....  Milwaukee. 

*CoRXEijrs  I.  Haring       ....  Milwaukee. 

*JoHX  M.  Olix         .....  Madison. 

*J.AMES  M.  Pereles  ....  ^lilwaukee. 


DELEG.\TES    FROM   STATES    NOT   HA\1XG   STATE    BAR    ASSOCLA.TIOXS 

(Appointed  by  the  judges  oj  the  highest  courts  thereof,  and  equal 
in  number  to  the  representation  oj  the  particidar  State  in  the  House 
oj  Representatives  oj  th^  United  States,  but  each  State  entitled  to  a 
minimum  oj  jive.) 


*ROBERT  W".    \VlLLLA.31S 


Florida. 


Tallahassee. 


IdaJw. 


W.  E.  Borah 
R.  \ .  Cozier  . 

J.   H.   FORXEY 

F.  S.  Dietrich 

*J.AiIES  E.   B.\BB 


Boise. 

Moscow. 

Moscow. 

Pocalello. 

Lewisto^sTi. 


Massachusetts. 


♦Lewis  S.  Dabxtiy    . 

J.\iEES  R.  DrXBAR    . 

S-AAfUEL  T-  Elder    . 

ROCKTVOOD  Ho.\R      . 
*Edw.\rd  W.  Hutchlxs 
♦.astdrew  j.  jzxtntxgs 

*WlLLL\iI   \\.    McClEXCH 

Hexhv  p.  Moulton 
♦Welllaa:  H.  Xiles  . 
♦Alfred  P.  Sawyer 

Edward  T.  Sloctm 


Boston. 

Brookline. 

Winchester. 

Worcester. 

Boston. 

Fall  River. 

Springfield. 

Salem. 

L_%TU1. 

Lowell. 
Pittsfield. 


304     CONGRESS   OF   LAWYERS  AND   JURISTS 


UNITED    STATES    OF    AMERICA  (continued) 

FROM    STATES    NOT    HAVING    STATE    BAR    ASSOCIATIONS  (continued) 


Massachusetts  (continued) 

VVlNFIELD  S.   SlOCUM  .... 

John  P.  Sweeney 

WiNSLOW  Warren 


A.  E.  Cheney 
M.  S.  Bonnefield 
E.  S.  Farrington 
Key  Pittman 
*F.  M.  Huffaker 


Nevada. 


Newton. 

Lawrence. 

Boston. 


Reno. 

Winnemucca. 
Elko. 
Tonopah. 
Vire^inia  City. 


delegates  from    the    faculties    of    AMERICAN    LAW    SCHOOLS     , 

(Attached  to  State  Universities  or  members  oj  the  Association  of 
American  Law  Schools.) 

Delegates  from  the  Association  of  American  Law  Schools: 

*E.  W.  HuFFCUT,  of  Cornell  University  College  of  Law. 

William  P.  Rogers,  of  the  Cincinnati  Law  School. 
♦Joseph  H.  Beale,  Jr.,  of  the  University  of  Chicago  Law  School. 

George  W.  Kirchwey,  of  the  School  of  Law  of  Columbia  Univer- 
sity. 
*Henry  S.  Richards,  of  the  Wisconsin  University  Law  School. 

Arkansas. 
University  of  Arkansas,  Law  Department. 
*J.  H.  Carmichael  ....         Little  Rock. 

California. 

Leland  Stanford  Junior  University. 

*Nathan  Abbott   .....         Stanford  University. 
William  Cullen  Dennis       .         .         .         Stanford  University. 

(.4  Iternate) 
David  Starr  Jordan  .         .         .         Stanford  University. 


LIST    OF    DELEGATES  305 

UNITED   STATES    OF    AMERICA  (continued) 
LAW  SCHOOLS  AND  UNIVERSITIES  (continued) 

Colorado. 
University  of  Colorado  School  of  Law. 
*JoHN  D.  Fleming  ....         Boulder. 

University  oj  Denver,  School  of  Law. 

*Lucius  W.  HoYT Denver. 

♦William  V.  Hodges      ....         Denver. 

Connecticut. 

Yale  University,  Law  Department. 
*James  Henry  Webb      ....         New  Haven. 

District  of  Columbia. 

Columbian  University,  Department  oj  Law. 
William  A.  Maury       ....         Washington. 
Stanton  C.  Peele         ....         Washington. 

{Alternates) 

Arthur  Peter Washington. 

John  Paul  Earnest     ....         Washington. 

Georgia. 

University  oj  Georgia. 

Walter  B.  Hill Athens. 

Sylvanus  Morris  ....        Athens. 

Illinois. 
University  oj  Chicago  Law  School. 

*Joseph  H.  Beale,  Jr Chicago. 

*James  Parker  Hall      ....         Chicago. 
*Julian  William  Mack.         .         .         .         Chicago. 

Illinois  College  oj  Law  {Dearborn  University) 
*Howard  N.  Ogden       ....         Chicago. 
*John  T.  Gose Chicago. 

{Alternate) 
George  W.  Warvelle  ....         Chicago. 


3o6     CONGRESS   OF  LAWYERS  AND   JURISTS 

UNITED    STATES    OF    AMERICA  (continued) 
LAW  SCHOOLS  AND  UNIVERSITIES  (continued) 

University  oj  Illinois. 
♦Oliver  A.  Barker        ....         Champaign. 

Northwestern  University,  Law  School. 

♦Samuel  Adams Chicago. 

♦Louis  May  Greeley    ....         Chicago. 
♦Henry  Schofield  ....         Chicago. 

{A  Ifernate) 
Albert  Martin  Kales  .         .         .         Chicago. 

Indiana. 

Law  School  0}  Indiana  University. 
♦Enoch  G.  Hogate         ....         BJoomington,  Ind. 
♦Charles  M.  Hepburn  ....         Cincinnati,  O. 

Iowa. 
Iowa  College  oj  Law  {Drake  University) 

♦C.  C.  Cole Des  Moines,  la. 

♦C.  a.  Dudley Des  Moines,  la. 

{A  Iter  nates) 

E.  B.  Evans  .....  Des  Moines,  la. 

H.  F.  Dale  .         .         .         .         .  Des  Moines,  la. 

W.  H.  McHenry Des  Moines,  la. 

State  University  oj  Iowa,  Collet^e  oj  Law. 
Charles  Noble  Gregory     .         .         .         Iowa  City,  la. 
♦Elmer  A.  Wilcox         ....        Iowa  City,  la. 

{Alternates) 

Samuel  Hayes      .....  Iowa  City,  la. 

Lawrence  M.  Byers    ....  Iowa  City,  la. 

Barry  Gilbert Iowa  City,  la. 

Kansas. 
Washburn  College,  School  oj  Law. 
♦Ernest  B.  Con  ant        ....        Topeka,  Kan. 


LIST    OF   DELEGATES  307 


UNITED    STATES    OF   AMERICA  (continued) 

LAW    SCHOOLS    AND    UNIVERSITIES  (continued) 

Maine. 

The  University  oj  Maine,  School  0}  Law. 
♦William  E.  Walz  ....        Bangor,  Me. 

Louis  C.  Southard        ....        Bangor,  Me. 

Massachusetts. 

Boston  University  Law  School. 
*Edward  a.  Harriman  ....         Boston,  Mass. 

Law  School  oj  Harvard  University. 
*James  Barr  Ames  ....         Cambridge,  Mass. 

*Samuel  Williston         ....         Cambridge,  Mass. 

Michigan. 

University  of  Michigan,  Department  0}  Law. 
*HoRACE  L.  WiLGUS         ....         Ann  Arbor,  Mich. 
*James  H.  Brewster      ....         Ann  Arbor,  Mich. 

Missouri. 

University  oj  Missouri,  Law  Department. 
♦Edward  W.  Hinton     ....         Columbia,  Mo. 
*Vasco  H.  Roberts         ....         Columbia,  Mo. 

St.  Louis  Law  School  {Washington  University) 
♦William  S.  Curtis        ....         St.  Louis,  Mo. 
♦William  W.  Keysor     ....         St.  Louis,  Mo. 

Nebraska. 

University  oj  Nebraska,  College  oj  Law. 
W.  W.  Cook Lincoln,  Neb. 

New  York. 

School  oj  Law  oj  Cohimbia  University. 
George  W.  Kirchwey           .         .         .         New  York,  N.  Y. 
♦James  B.  Scott New  York,  N.  Y. 


3o8     CONGRESS   OF   LAWYERS   AND   JURISTS 

UNITED    STATES    OF    AMERICA  (continued) 
LAW  SCHOOLS  AND  UNIVERSITIES  (continued) 

Cornell  University,  College  oj  Law. 
*E.  W.  HuFFCUT Ithaca,  N.  Y. 

College  0}  Law  oj  Syracuse  University. 
*Louis  E.  Waters  ....         Syracuse,  N.  Y, 

Pennsylvania. 

University  of  Pennsylvania,  Department  oj  Law. 

*WiLLiAM  Draper  Lewis         .         .         .         Philadelphia,  Pa. 
*\ViLLi\M  K.  ^TIKELL      ....         Philadelphia,  Pa. 

Philippine  Islands. 
La  Real  y  J'ontijicla  Universidad  de  Sto.  Tomds  de  Manila. 
*P.  ToMAS  Lor  EXT  E        ....         New  Orleans,  La. 

Texas. 
The  University  oj  Texas,  Department  oj  Law. 
*Charles  Henry  Huberich   .         .         .         Austin,  Tex. 

Wisconsin. 

University  oj  Wisconsin,  College  oj  Law. 

*H.  S.  Richards Madison,  Wis. 

*E.  A.  Gilmore Madison,  Wis. 

delegates  at  large 

(Eminent  judges,  jurists,  and  lawyers  who  accepted  special  invita- 
tions to  participate  in  the  Congress,  together  with  those  who  served  as 
members  oj  the  organization  committees^ 

*E.  T.  Allen St.  Louis,  Mo. 

•|-*B.  Mason  Ambler    ....         Parkersburg,  W.  Va. 
*W.  N.  Appel    .....         Lancaster,  Pa. 

♦Present. 

fMembers  of  ihu  Aniurican  Uar  Association's  Committee  on  the  Universal 
Congress  of  Lawyers  and  Jurists. 


LIST    OF    DELEGATES 


309 


UNITED    STATES    OF    AMERICA  (continued) 

DELEGATES    AT    LARGE  (continued) 

St.  Louis,  Mo. 


:{:*Albert  Arxstein 
.t*SHEPARD  Barclay     . 
♦Charles  A.  Barnes 

*W.   S.   BiCKSLER 

*W.  W.  Brannon 

t*FREDERICK   V.    BrOWX 

*James  F.  Brown 
t*FABius  H.  Busbee    . 
t*HuGH  Butler  . 

t Frederick  H.  Button 
George  H.  Carr 
M.   M.   COHN     . 
t*PAUL  F.  Coste 

*Edward  Cunningham,  Jr 

fF.  C.  Dillard 

♦Charles  L.  Dundy 

♦George  Du  Relle  . 
t*SAMUEL  C.  Eastman 

♦Joseph  R.  Edson 
A.  C.  Ellis 

♦John  G.  Ewing 
I^Franklin  Ferriss     . 

♦Ernest  T.  Florance 

♦A.  D.  Follett 

♦Martin  D.  Follett 

t^GEORGE    M.    FORSTER 

♦Edward  W.  Frost   . 
:}:Smith  p.  Galt 
fGEORGE  Gray  . 

James  S.  Harlan 
♦M.  M.  Harnish 
♦W.  O.  Hart     . 


St.  Louis,  Mo. 
Jacksonville,  111. 
Denver,  Col. 
Weston,  W.  Va. 
Minneapolis,  Minn. 
Charleston,  W.  Va. 
Raleigh,  N.  C. 
Denver,  Col. 
New  York,  N.  Y. 
Des  Moines,  Iowa. 
Little  Rock,  Ark. 
St.  Louis,  Mo. 
St.  Louis,  Mo. 
Sherman,  Texas. 
Omaha,  Neb. 
Louisville,  Ky. 
Concord,  N.  H. 
Washington,  D.  C. 
Salt  Lake  City,  Utah. 
Notre  Dame,  Ind. 
St.  Louis,  Mo. 
New  Orleans,  La. 
Marietta,  Ohio. 
Marietta,  Ohio. 
Spokane,  Wash. 
Milwaukee,  Wis. 
St.  Louis,  Mo. 
Wilmington,  Del. 
Chicago,  III. 
Lancaster,  Pa. 
New  Orleans,  La. 


^Present. 

fMembers  of  the  American  Bar  .A.ssociation's  Committee  on  the  L'niversal 
Congress  of  Lawyers  and  Jurists. 

jMembers  of  the  E.xposition's  Committee  on  the  Universal   Congress  of 
Lawyers  and  Jurists. 


3IO     CONGRESS   OF  LAWYERS   AND   JURISTS 


UNITED   STATES 
delegates 

JThomas  B.  Harvey 

♦Thomas  E.  Harwood 
J*R.  B.  Haughton 

*Lynn  Helm 
f*J.  C.  Herndon 

*Frank  M.  Higgins  . 

fW.  J.  Hills      . 
f*CLiFFORD  L.  Jackson 
J*JoHN  D.  Johnson     . 

*Wyndham  Kemp 
J*Henry  T.  Kent 

JR.  H.  Kern      . 

t*WlLLIAM   A.    KeTCHAM 

Gardiner  Lathrop  . 
*John  D.  Lawson 
*JoHN  F.  Lee    . 

fBENJAMIN   S.    LiDDON 

Henry  McBride 

*W.  S.  McCain 

•j-L.  E.  McCoMAs 
J*J.  E.  McKeighan     . 

*Donald  McLean 

f  A.  E.  Mayhew 

fRALEiGH  C.  Minor  . 
■|-*Charles  Monroe  . 
f*M.  A.  Montgomery 

*J.  M.  Moore   . 
f*T.  Moultrie  Mordecai 

*Ira  D.  Oglesby 

*E.  W.  Pattison 

*V.  MoTT  Porter 
|*Leo  Rassieur  - 


OF    AMERICA  (continued) 
AT  large  (continued) 

St.  Louis,  Mo. 
Benton,  Tenn. 
St.  Louis,  Mo. 
Los  Angeles,  Cal. 
Prescott,  Ariz. 
Limerick,  Me. 
Juneau,  Alaska. 
Muscogee,  I.  T. 
St.  Louis,  Mo. 
El  Paso,  Tex. 
St.  Louis,  Mo. 
St.  Louis,  Mo. 
Indianapolis,  Ind. 
Kansas  City,  Mo. 
Columbia,  Mo. 
St.  Louis,  Mo. 
Marianna,  Fla. 
Olympia,  Wash. 
Little  Rock,  Ark. 
Williamsport,  Md. 
St.  Louis,  Mo. 
New  York,  N.  Y. 
Wallace,  Idaho. 
Charlottesville,  Va. 
Los  Angeles,  Cal. 
Oxford,  Miss. 
Little  Rock,  Ark. 
Charleston,  S.  C. 
Fort  Smith,  Ark. 
St.  Louis,  Mo. 
St.  Louis,  Mo. 
St.  Louis,  Mo. 


*Present. 

fMembers  of  the  American  Bar  Association's  Committee  on  the  Universal 
Congress  of  Lawyers  and  Jurists. 

jMembers  of  the  Exposition's  Committee  on  the  Universal  Congress  of 
Lawyers  and  Jurists. 


LIST    OF   DELEGATES 


3" 


UNITED    STATES    OF    AMERICA  (continued) 

DELEGATES    AT    LARGE   (continued) 

St.  Louis,  Mo. 
Ogden,  Utah. 
St.  Louis,  Mo. 


JValle  Reyburn 
H.  H.  Rolapp  . 
I  Clinton  Rowell 
*Benjamin  H.  Rutledge 

t*WlLLIAM   ScALLON 

*E.  L.  Scarritt 
*Charles  J.  Schnabel 

*F.    L.    SCHOFIELD 

|*James  a.  Seddon 
I  Arthur  B.  Shepley 
*Adiel  Sherwood 
*George  H.  Shields 
F.  L.  Siddons  . 
*Thomas  K.  Skinker 
*Alfred  Percival  Smith 
jBuRTON  Smith 

f*CHARLES  Blood  Smith 
{Eleneious  Si\nTH 
*Harvey  F.  Smith 
fBuRLEiGH  F.  Spalding 
*HoRACE  Speed 
*E.  G.  Spilman 
*R.  G.  Street  . 
*Theodore  Sutro 

t*W.  B.  Swaney 
J  George  W.  Taussig 
R.  S.  Taylor  . 
I  James  Tillinghast  . 

f*EDMUND    F.    TrAUBE 

*W.  J.  Turner  . 
*E.  Wakeley  . 
*Bradley  Walker 


Charleston,  S.  C. 
Butte,  Mont. 
Kansas  City,  Mo. 
Portland,  Ore. 
Hannibal,  Mo. 
St.  Louis,  Mo. 
St.  Louis,  Mo. 
St.  Louis,  Mo. 
St.  Louis,  Mo. 
Washington,  D.  C. 
St.  Louis,  Mo. 
Philadelphia,  Pa. 
Atlanta,  Ga. 
Topeka,  Kan. 
St.  Louis,  Mo. 
Clarksburg,  W.  Va. 
Fargo,  N.  D. 
Guthrie,  Okla. 
Kingfisher,  Okla. 
Galveston,  Tex. 
New  York,  N.  Y. 
Chattanooga,  Tenn. 
St.  Louis,  Mo. 
Fort  Wayne,  Ind. 
Providence,  R.  I. 
Louisville,  Ky. 
Milwaukee,  Wis. 
Omaha,  Neb. 
Nashville,  Tenn. 


♦Present. 

fMembers  of  the  American  Bar  Association's  Committee  on  the  Universal 
Congress  of  Lawyers  and  Jurists. 

IMember  of  the  Exposition's  Committee  on  the  Universal  Congress  of 
Lawyers  and  Jurists. 


312      CONGRESS   OF  LAWYERS  AND   JURISTS 
UNITED    STATES    OF    AMERICA  (continued) 

DELEGATES    AT    LARGE  (continued) 

♦Robert  F.  Walker  ...  St.  Louis,  Mo. 

♦Robert  White  ....  Wheeling,  W.  Va. 

fP.  L.  Williams         ....  Salt  Lake  City,  Utah. 

J*HoRATio  D.  Wood    ....  St.  Louis,  Mo. 

fD.wiD  Walkkr  Y.^ncey    .         .         .  Lucena,  Tayabas,P.I. 


GENERAL  NUMERICAL  SUMMARY 

Number  of  delegates  accredited     ....         960 
Deduct  for  names  inserted  twice  on  account  of  aj)- 

pointment  from  two  sources     .  .  .  .  21 

Number  of  individuals  accredited  as  delegates         .  939 

Number  of  delegates  who  registered       .  .  .         481 

Number  of  delegates  who  were  absent  or  failed  to 

458         939 


register 


♦Present. 

fMembers  of  the  American  Bar  Association's  Committee  on  the  Universal 
Congress  of  Lawyers  and  Jurists. 

jMembers  of  the  Exposition's  Committee  on   the   Universal   Congress  of 
Lawyers  and  Jurists. 


APPENDIX 


APPENDIX    A 

HISTORY  OF  THE  ORGANIZATION  OF  THE  CONGRESS 

At  the  twenty-fourth  annual  meeting  of  the  American 
Bar  Association,  held  in  1901,  at  Denver,  Colorado,  Mr. 
Charles  Claflin  Allen  of  Missouri  read  the  follow- 
ing Memorial  from  the  Louisiana  Purchase  Exposition 
Company : 

Mr.  President  and  Gentlemen  of  the  American  Bar  Association: 
In  1803  the  United  States  purchased  the  Louisiana  Territory  from 
France;  in  1903  the  Centennial  of  that  purchase  will  be  celebrated 
in  the  city  of  St.  Louis,  Missouri. 

After  the  purchase  treaty  was  signed,  Napoleon  said  to  Marbois, 
"This  acquisition  of  territory  strengthens  forever  the  power  of  the 
United  States." 

His  prophetic  words  have  been  realized.  The  Louisiana  Pur- 
chase paved  the  way  for  the  acquisition  of  Oregon,  Cahfornia,  and 
Texas,  enabled  the  United  States  to  span  the  continent  from  the 
Atlantic  to  the  Pacific;  and  made  her  territory  the  meeting-ground 
for  the  Occident  and  the  Orient.  The  wilderness  of  1803  has  devel- 
oped into  fourteen  States  and  Territories,  including  the  great  State 
of  Colorado,  in  which  the  meeting  of  the  American  Bar  Association 
is  held. 

The  price  paid  by  the  United  States  for  the  territory  was  fifteen 
million  dollars.  Its  taxable  wealth  to-day  exceeds  six  thousand 
millions,  and  St.  Louis,  with  the  generous  aid  of  Congress,  is  pre- 
pared to  devote  a  sum  equal  to  the  price  of  the  purchase  solely  t'^ 
the  celebration  of  its  centennial  in  1903. 

The  resources  of  this  great  domain  are  wonderfully  varied  and 
marvelous  in  their  extent.  Perhaps  few  people,  even  within  the  limits 
of  the  Purchase  Territory  itself,  realize  that  it  produces  one-half  of 
the  cotton  raised  in  the  United  States;  that  a  billion  bushels  of  corn 
a  year  is  not  an  extraordinary  crop ;  that  its  wheat  crop  often  amounts 

315 


3i6      CONGRESS   OF    LAWYERS   AND    JURISTS 

in  value  to  two  hundred  million  dollars;  its  hay  crop  to  one  hun- 
dred and  fifty  million  dollars;  and  that  the  cattle,  horses,  and  mules 
u])on  its  ranges  are  valued  at  a  thousand  million  dollars. 

This  wonderful  development  in  material  resources  Ikis  been 
accompanied  by  a  corresponding  development  in  the  mental  and 
spiritual  life  of  its  inhabitants.  Universities,  colleges,  scientific  and 
normal  schools  in  many  of  the  States  are  supported  at  the  expense 
of  the  State;  private  institutions  of  learning  are  numberless,  and 
public  schools,  which  must  be,  in  the  future  even  more  than  in  the 
past,  the  conservators  of  the  liberties  of  the  people,  can  be  seen  from 
every  hilltop. 

Medical  schools  and  law  schools  are  to  be  found  in  many  of  the 
cities  in  the  Louisiana  Purchase,  some  of  them  ranking  with  the 
best  professional  schools  in  the  country. 

The  Centennial  Exjwsition  to  be  held  in  1903  is  in  charge  of 
the  Louisiana  Purchase  Exposition  Company,  and  the  plans  of  the 
management  contemplate  a  World's  Fair  greater  and  more  wonderful 
than  any  ever  held.  It  has  an  appropriation  from  Congress  of  five  mil- 
lion dollars,  the  largest  aid  ever  given  by  the  United  States  to  a  like 
purpose,  and  it  has  the  promise  of  full  support  by  the  Government. 
It  will  not  be  like  any  of  its  predecessors  in  architecture,  landscapes, 
designs,  or  the  arrangement  of  its  exhibits.  It  will  be  a  stupendous 
monument  to  the  material  growth  and  commercial  and  manufacturing 
development  not  only  of  the  Louisiana  Purchase  and  the  United 
States,  but  of  the  whole  world. 

But  it  will  be  more  than  that.  It  is  a  part  of  the  plan  to  gather 
together  the  learned  men  of  the  world  in  the  several  departments 
of  arts  and  sciences,  including  the  science  of  jurisprudence. 

There  will  be  held  in  the  city  of  St.  Louis,  Missouri,  during  the 
Centennial  Exposition  of  the  Louisiana  Purchase,  a  Universal 
Congress  of  Lawyers.     This  congress  will  be  composed  as  follows: 

1.  Lawyers  and  jurists  from  every  nation  of  the  world. 

2.  Teachers  of  law  and  persons  learned  in  special  branches  of 
jurisprudence. 

3.  Persons  learned  in  ancient  law,  including  teachers  of  the 
history  of  law,  and  students  of  the  laws  of  peoples  and  nations  now 
extinct. 

The  foregoing  summary  is  an  outline  of  the  underlying  idea  of 
the   plan.     The   character,   constitution,   and   management   of   the 


APPENDIX    A  317 


Congress  itself  will  be  developed  hereafter,  and  chiefly,  it  is  hoj)ed, 
by  the  American  Bar  Association. 

The  Committee  on  Education  of  the  Louisiana  Purchase  Exposi- 
tion Company,  upon  whom  falls  the  duty  of  preparing  for  this  con- 
gress, adopt  the  definition  of  Justinian:  "Jurisprudence  is  the 
knowledge  of  things  divine  and  human,  the  science  of  the  right  and 
the  wrong." 

The  one  great  object  is  to  make  the  congress  of  lawyers  as 
universal  in  scope  as  that  definition.  Therefore  the  Louisiana  Pur- 
chase Exposition  Company,  acting  through  its  Committee  on  Educa- 
tion, extends  to  the  American  Bar  Association,  as  the  great  body  of 
representative  lawyers  and  jurists  from  all  parts  of  the  United  States, 
an  invitation  to  unite  with  the  Louisiana  Purchase  Exposition 
Company  in  securing  a  Universal  Congress  of  Lawyers,  to  meet  at 
St.  Louis,  Missouri,  during  the  Exposition  of  1903. 

To  that  end  the  American  Bar  Association  is  requested  to  appoint 
a  committee  of  one  hundred  or  more  representative  lawyers  from 
dififerent  States  and  Territories  of  the  United  States  and  from  foreign 
countries,  if  desired,  whose  duty  it  shall  be  to  plan,  and,  subject  to 
the  supervision  of  the  Louisiana  Purchase  Exposition  Company, 
arrange  for  the  holding  of  such  Universal  Congress  of  Lawyers. 

The  CoiMinTTEE  on  Education  of  the  Louisiana  Purchase 
Exposition  Company, 

Approved:  By  John  Schroers,  Chairman. 

David  R.  Francis, 

President  of  the  Louisiana  Purchase  Exposition  Company. 

After  the  reading  of  the  Memorial,  on  motion  of  Mr. 
Stevens  of  Minnesota,  the  invitation  therein  contained 
was  referred  to  a  special  committee  of  nine  members,  to 
be  appointed  by  the  President  of  the  American  Bar  Asso- 
ciation. 

The  following  gentlemen  were  named  by  the  President 

as  members  of  the  Special  Committee: 

Hiram  F.  Stevens  of  Minnesota. 
James  Hagerman  of  Missouri. 
Walter  S.  Logan  of  New  York. 
William  A.  Ketcham  of  Indiana. 


3i8      CONGRESS   OF   LAWYERS  AND   JURISTS 

Charles  F.  Libby  of  Maine. 
Hugh  Butler  of  Colorado. 
Burton  Smith  of  Georgia. 
Adolph  Moses  of  Illinois. 
F.  C.  Dillard  of  Texas. 

The  above  Committee,  after  considering  the  matter, 
brought  in  the  following  report : 

To  the  American  Bar  Association: 

Your  Special  Committee  on  the  Louisiana  Purchase  Centennial, 
to  whom  was  referred  the  Memorial  of  the  Exposition  authorities, 
advising  of  the  contemplated  holding  of  an  Universal  Congress  of 
Lawyers  and  Jurists  during  the  Centennial  Celebration  at  St.  Louis, 
Missouri,  in  the  year  1903,  and  asking  the  co-operation  and  support 
of  this  Association  in  planning  such  Congress,  with  the  accompanying 
invitation  for  this  Association  to  hold  its  annual  meeting  at  St.  Louis 
in  that  year,  having  carefully  considered  the  same,  are  unanimously 
of  the  opinion  that  the  encouragement  and  promotion  of  the  holding 
of  an  Universal  Congress  of  the  Lawyers  and  Jurists  of  the  World, 
such  as  contemplated  by  the  Memorial,  tends  to  further  one  of  the 
principal  objects  of  this  Association,  which,  as  its  constitution  declares, 
is  "to  advance  the  science  of  jurisprudence." 

The  Louisiana  Purchase  Centennial  has  received  liberal  aid 
and  encouragement  from  the  National  Government  in  the  appropria- 
tion of  five  million  dollars,  which,  with  the  eleven  million  dollars 
provided  by  the  city  of  St.  Louis,  its  citizens,  and  the  State  of 
Missouri,  constitutes  a  guaranty  of  the  Centennial  Exposition  itself, 
and  the  appointment  of  national  commissioners  to  co-operate  with 
the  local  management  is  an  added  assurance  of  the  proper  adminis- 
tration of  the  trust. 

We  are  advised  that  the  educational  forces  of  the  world  are  to 
hold  their  meetings  in  St.  Louis  during  the  Exposition  of  1903. 
The  President  of  the  United  States  has  given  further  official  sanction 
of  the  Government  to  the  Exposition  in  a  proclamation  issued  to 
the  nations  of  the  earth,  August  21,  1901,  in  which  he  says: 

"In  the  name  of  the  Government  and  of  the  people  of  the  United 
States  I  do  hereby  invite  all  the  nations  of  the  earth  to  take  part  in 
the  commemoration  of  the  purchase  of  the  Louisiana  Territory,  an 


APPENDIX   A  319 


event  of  great  interest  to  the.' United  States  and  of  abiding  effect  upon 
their  development,  by  appointing  representatives  and  sending  such 
exhibits  to  the  Louisiana  Purchase  Exposition  as  will  most  fitly  and 
fully  illustrate  their  resources,  their  industries,  and  their  progress  in 
civilization." 

We  recommend  the  adoption  of  the  following  resolution: 

1.  Resolved,  That  a  committee  composed  of  one  member  from 
each  State  and  Territory  of  the  Union  and  from  the  District  of 
Columbia  be  appointed  by  the  President  of  this  Association  to  co- 
operate with  the  authorities  of  the  Louisiana  Purchase  Exposition 
Company  and  the  United  States  Commission  having  in  charge  the 
celebration  of  the  centennial  of  the  purchase  by  the  United  States 
from  France  of  the  Louisiana  Territory,  in  bringing  about  the  holding 
of  an  Universal  Congress  of  Lawyers  and  Jurists  at  St.  Louis,  Mis- 
souri, in  1903,  on  the  lines  proposed  in  the  Memorial  of  the  Louisiana 
Purchase  Exposition  Company  presented  at  this  meeting  to  this 
Association. 

2.  Resolved,  further,  That  the  President  and  the  Executive 
Committee  of  this  Association  be  requested  to  take  all  necessary 
and  appropriate  steps  to  promote  and  carry  out  the  plan  of  holding 
such  Universal  Congress  of  Lawyers  and  Jurists. 

3.  Resolved,  jurther,  That  a  copy  of  these  resolutions  and  the 
accompanying  report  be  transmitted  by  the  Secretary  to  the  Louisiana 
Purchase  Exposition  Company  and  to  the  said  United  States  Com- 
missions. 

Hiram  F.  Stevens,  Chairman. 

The  resolutions  proposed  in  the  above  report  were,  on 
motion,  duly  adopted.  The  committee  provided  for  in 
the  resolutions  was  thereafter  appointed  by  the  President 
of  the  American  Bar  Association.  Its  membership,  as 
first  constituted,  was  as  follows: 

American  Bar  Association  Committee  on  Louisiana  Purchase 

Exposition 

James  Hagerman,  Chairman       .  St.  Louis,  Missouri. 

Thomas  N.  McClellan      .         .  Montgomery,  Alabama. 

W.  J.  Hills        ....  Juneau,  Alaska. 

John  C.  Herndon      .         .         .  Prescott,  Arizona. 


320 


CONGRESS   OF   LAWYERS   AND   JURISTS 


Bex  T.  Du  Val 
Charles  Monroe 
Hugh  Butler    . 
Simeon  E.  Baldwin 
George  Gray    . 
A.  B.  Browne    . 
Benjamin  S.  Liddon 
Burton  Smith    . 
Bamford  a.  Robb 
Adolph  Moses  . 
Clifford  L.  Jackson 
William  A.  Ketcham 
James  C.  Davis 
Charles  Blood  Smith 
Edmund  F.  Trabue  . 
William  Wirt  Howe 
Hannibal  E.  Hamlin 
Louis  E.  McComas    . 
Alfred  Hemenway    . 
Alfred  Russell 
Hiram  F.  Stevens 
M.  A.  Montgomery   . 
John  W.  Cotter 
Charles  F.  Manderson 
Samuel  C.  Eastman  . 
R.  Wayne  Parker 
Thomas  B.  Catron    . 
Walter  S.  Logan 
Fabius  H.  Bus  bee 
Burleigh  F.  Spalding 
Judson  Harmon 
Bayard  T.  Hainer    . 
R.  S.  Bean 
W.  U.  Hensel   . 
David  Walker  Yancey 
James  Tillinghast    . 
T.  Moultrie  Mordecai 
Bartlett  Tripp 
Ed.  Baxter 


Little  Rock,  Arkansas. 
Los  Angeles,  California. 
Denver,  Colorado. 
New  Haven,  Connecticut. 
Wilmington,  Delaware. 
Washington,  D.  C. 
Marianna,  Florida. 
Atlanta,  Georgia. 
Boise,  Idaho. 
Chicago,  Illinois. 
Muscogee,  Indian  Territory 
Indianapolis,  Indiana. 
Keokuk,  Iowa. 
Topeka,  Kansas. 
Louisville,  Kentucky. 
New  Orleans,  Louisiana. 
Ellsworth,  Maine. 
Hagerstown,  Maryland. 
Boston,  Massachusetts. 
Detroit,  Michigan. 
St.  Paul,  Minnesota. 
Oxford,  Mississippi. 
Butte,  Montana. 
Omaha,  Nebraska. 
Concord,  New  Hampshire. 
Newark,  New  Jersey. 
Santa  Fe,  New  Mexico. 
New  York,  N.  Y. 
Raleigh,  North  Carolina. 
Fargo,  North  Dakota. 
Cincinnati,  Ohio. 
Perry,  Oklahoma  Territory. 
Salem,  Oregon. 
Lancaster,  Pennsylvania. 
Lucena,  Tayahas,  P.  I. 
Providence,  Rhode  Island. 
Charleston,  South  Carolina. 
Yankton,  South  Dakota. 
Nashville,  Tennessee. 


APPENDIX    A  321 


F.    C.    DiLLARD     . 

P.  L.  Williams 
Frederick  H.  Button 
Raleigh  C.  Minor     . 
George  M.  Forster  . 
B.  Mason  Ambler 
Frederick  C.  Winkler 
Charles  N.  Potter  . 


Sherman,  Texas. 
Salt  Lake  City,  Utah. 
Rutland,  Vermont. 
Charlottesville,  Virginia. 
Spokane,  Washington. 
Parkersburg,  West  Virginia. 
Milwaukee,  Wisconsin. 
Cheyenne,  Wyoming. 


Some  of  the  above-named  members  of  the  Committee 
found  themselves  unable  to  serve,  and  new  appointments 
were  made,  as  follows:  U.  M.  Rose  of  Little  Rock,  Ar- 
kansas, instead  of  Ben  T.  Du  Val  of  the  same  city;  A.  E. 
Mayhew^  of  Wallace,  Idaho,  instead  of  Bamford  A. 
RoBB  of  Boise,  Idaho;  Emlin  McClain  of  Iowa  City, 
Iowa,  instead  of  James  C.  Davis  of  Keokuk,  Iowa; 
Charles  F.  Libby  of  Portland,  Maine,  instead  of  Hanni- 
bal E.  Hamlin  of  Ellsworth,  Maine;  Don  M.  Dickin- 
son of  Detroit,  Michigan,  in  place  of  Alfred  Russell 
of  the  same  city;  William  Scallon  of  Butte,  Montana,  in 
place  of  John  W.  Cotter  of  the  same  city;  John  W. 
Griggs  of  Patterson,  New  Jersey,  in  place  of  R.  Wayne 
Parker  of  Newark,  New  Jersey;  W.  B.  Swaney  of 
Chattanooga,  Tennessee,  in  place  of  Ed.  Baxter  of 
Nashville,  Tennessee,  and  David  L.  Withington  of  the 
Hawaiian  Islands  was  added  to  the  Committee. 

At  the  twenty-fifth  annual  meeting  of  the  American 
Bar  Association,  held  at  Saratoga  Springs  in  1902,  the 
Committee  on  Louisiana  Purchase  Exposition  reported 
as  follows: 

To  the  American  Bar  Association: 

The  Special  Committee  on  the  Louisiana  Purchase  Exposition 
respectfully  reports: 

Since  the  appointment  of  this  Committee,  pursuant  to  resolutions 
of  this  Association  adopted  at  its  annual  meeting  in  1901,  the  author- 


322      CONGRESS   OF   LAWYERS   AND    JURISTS 

ities  having  in  charge  the  celebration  of  the  Louisiana  Purchase  at 
St.  Louis,  Mo.,  have,  with  the  consent  and  by  the  authority  of  the 
Congress  of  the  United  States,  postponed  the  holding  of  the  Exposi- 
tion to  1904. 

Those  having  charge,  accordingly,  have  postponed  the  holding  of 
the  Universal  Congress  of  Lawyers  and  Jurists  until  that  year,  and 
have  appointed  a  Committee,  consisting  of  thirty  representative  law- 
yers of  the  city  of  St.  Louis,  which,  in  connection  with  committees, 
executive  and  special,  of  the  Bar  Associations  of  the  city  of  St.  Louis 
and  the  States  of  Missouri  and  Kansas,  and  of  this  Association,  are 
now  engaged  in  formulating  the  plan  and  programme  of  the  proposed 
Congress,  and  the  outline  plan  thereof,  so  far  as  framed,  is  as  follows: 

Outline  Plan  of  Universal  Congress  of  Lawyers  and  Jurists 

1.  The  Congress  shall  be  composed  of  not  less  than  six  hundred 
Delegates,  selected  as  follows: 

(a)  A  stated  number  of  Delegates,  to  be  named  by  the  govern- 
ments of  the  world  upon  the  recommendation  of  the  highest  courts 
thereof,  or  of  their  departments  of  justice. 

(b)  Delegates  to  be  appointed  among  the  Bar  Associations  of  the 
United  States  and  kindred  associations  of  the  other  countries  of  the 
world,  and  to  be  named  by  such  associations. 

(c)  Delegates  from  the  law  universities  and  colleges  of  the  world, 
to  be  named  by  the  faculties  or  constituted  authorities  thereof. 

(d)  Such  eminent  judges,  jurists,  and  lawyers  as  may  be  specially 
asked  to  be  Delegates. 

2.  The  American  Bar  Association,  through  its  designated  repre- 
sentatives, to  join  in  the  invitation  to  the  powers  appointing  the  Dele- 
gates, and  to  specially  invited  Delegates. 

3.  The  Congress  to  meet  at  St.  Louis  in  September,  1904,  in  a  hall 
to  be  provided  by  the  Louisiana  Purchase  Exposition  Company,  and 
to  be  in  session  from  three  to  five  days;  the  meetings  to  be  open  to 
the  public,  save  as  the  Congress  may  determine  to  have  one  or  more 
executive  sessions. 

4.  The  program  of  exercises  to  consist  of  addresses,  papers,  and 
debates  upon  topics  of  jurisprudence  to  be  prepared  by  a  joint  com- 
mittee of  the  Louisiana  Purchase  Exposition  Company,  the  American 
Bar  Association,  and  the  Bar  Associations  of  the  city  of  St.  Louis, 
and  of  the  States  of  Missouri  and  Kansas. 


APPENDIX    A  ^2 


0^v5 


5.  At  the  end  of  the  session  a  banquet  to  be  given  to  the  members 
by  the  Louisiana  Purchase  Exposition  Company. 

6.  The  proceedings  of  the  Congress  to  be  pubhshed  in  book  form 
by  the  Louisiana  Purchase  Exposition  Company  for  distribution. 

7.  Should  it  be  determined  to  hold  a  meeting  of  this  Association 
in  St.  Louis  immediately  preceding  or  following  or  concurrent  with 
the  Congress,  the  Exposition  authorities  are  to  extend  the  same 
privileges  and  courtesies  to  this  Association  as  to  the  Congress. 

For  the  information  of  this  Association,  we  append  hereto  a  list 
of  the  committees  above  referred  to  other  than  those  of  this  Associa- 
tion. 

We  recommend  to  this  Association  the  approval  of  this  tentative 
plan,  and  that  this  committee  be  continued  and  authorized  to  approve 
such  modifications  thereof  as  may  meet  its  judgment. 

James  Hagerman,  Chairman. 

Louisiana  Purchase  Exposition  Company's  Special  Committee 
ON  Universal  Congress  of  Lavi^ers  and  Jurists 

F.  W.  Lehmann,  Chairman;  Jno.  W.  Noble,  James  Hagerman, 
Gusta\ais  A.  Finkelnburg,  R.  H.  Kern,  J.  E.  McKeighan,  Shepard 
Barclay,  John  H.  Overall,  Franklin  Ferriss,  Leo  Rassieur,  Horatio 
D.  Wood,  Given  Campbell,  James  A.  Seddon,  Isaac  H.  Lionberger, 
Eleneious  Smith,  Charles  Claflin  Allen, Henry  T.Kent,  John  D.  John- 
son, Paul  F.  Coste,  Richard  B.  Haughton,  Thomas  B.  Harvey, 
George  W.  Taussig,  .\rthur  B.  Shepley,  Albert  Arnstein,  James  L. 
Blair,  E.  S.  Robert,  Valle  Reyburn,  Jacob  Klein,  CHnton  Rowell. 

St.  Louis  Bar  Association 
Executive  Committee 
Jacob  Klein,  Samuel  H.  West,  George  T.  Weitzel,  John  F.  Lee, 
Henry  S.  Caulfield. 

Special  Committee  on  Universal  Congress  oj  Lawyers  and  Jurists. 
A.  M.  Thayer,  Chairman;  E.  B.  Adams,  S.  P.  Spencer,  Wilbur  F. 
Boyle,  A.  G.  Cochran,  F.  N.  Jusdon,  R.  F.  Walker,  John  F.  Lee, 
H.  L.  Christie. 


324     CONGRESS   OF   LAWYERS  AND   JURISTS 

Missouri  Bar  Association 
Executive  Commitlee 
Gardiner  Lafhrop,  Moses  Whybark,  Seldeii  P.  Spencer,  C.  F. 
Gallenkamp,  Adiel  Sherwood. 

Special   Committee  on  Universal  Congress  of  Lawyers  and  Jurists 

John  F.  Philips,  Virgil  ConkUng,  Ed.  L.  Scarritt,  F.  L.  Schofield, 
Gardiner  Lathrop. 

Kansas  Bar  Association 
Executive  Council 

C.  W.  Smith,  Chairman;  Bennett  R.  Wheeler,  J.  W.  Adams,  T. 
N.  Sedgwick,  Rezin  lams. 

Special  Committee  on   Universal  Congress  of  Lawyers   and  Jurists 
J.  G.  Slonecker,  Chairman;   Otto   G.   Eckstein,   J.  W.  Green, 
Charles  Hayden,  Winfieid  Freeman. 

On  motion  the  Association  gave  its  approval  of  the 
tentative  plan  set  out  in  the  above  report,  and  the  Com- 
mittee was  continued  and  authorized  to  make  such  modi- 
fications thereof  as  it  might  deem  proper. 

At  the  twenty-sixth  annual  meeting  of  the  American 
Bar  Association,  held  at  Hot  Springs,  Virginia,  in  1903, 
the  Committee  on  Louisiana  Purchase  Exposition  re- 
ported as  follows: 

To  the  American  Bar  Association: 

Your  Committee  on  Louisiana  Purchase  Exposition  respectfully 
reports  that  since  the  last  annual  meeting  of  this  Association  it  has 
been  determined  by  the  Committee  of  the  Louisiana  Purchase  Ex- 
position Company  and  the  other  local  auxiliary  committees  and  your 
Committee,  having  in  charge  the  holding  of  a  Universal  Congress  of 
lawyers  and  jurists,  that  said  Congress  shall  be  held  in  St.  Louis, 
Missouri,  from  September  2(S  to  30,  1904,  inclusive,  under  the 
auspices  of  the  Exposition  Company,  and  with  the  co-operation  of 
the  American  Bar  Association,  in  substantial  conformity  to  the  out- 
lined plan  submitted  by  your  Committee  to  this  Association  at  its 


APPENDIX   A  325 


last  annual  meeting,  and  by  the  Association  approved,  and  which  is 
published  with  the  proceedings  of  the  last  annual  meeting. 

The  Congress  is  to  consist  of  not  less  than  six  hundred  Delegates, 
to  be  composed  of — 

(a)  Delegates  nam'ed  by  the  governments  of  the  world. 

(b)  Delegates  from  bar  associations  of  the  United  States  and 
kindred  associations  of  other  nations. 

(c)  Delegates  from  law  universities,  named  by  the  constituted 
authorities  thereof. 

(d)  Such  eminent  judges,  jurists,  and  lawyers  as  may  be  specially 
appointed  as  Delegates. 

And  is  to  be  followed  by  a  banquet  tendered  by  the  Exposition 
Company  to  the  members  of  the  Congress  and  of  the  American  Bar 
Association. 

The  proceedings  of  the  Congress  are  to  be  published  by  the  Ex- 
position Company  and  distributed  among  the  members  of  the  Con- 
gress and  of  the  American  Bar  Association. 

The  committees  in  charge  of  the  Congress,  including  your  Com- 
mittee, have  under  consideration,  but  have  not  yet  finally  determined 
as  to  the  apportionment  of  Delegates  to  the  Congress,  or  the  order  of 
business  or  programme  of  proceedings. 

Three  forms  of  invitations  to  the  Congress  have  been  practically 
agreed  upon,  and  are  to  be  sent  out  jointly  by  the  Louisiana  Purchase 
Exposition  Company  and  this  Association,  through  their  respective 
presidents.     These  invitations  are: 

1.  To  the  governments  of  the  world,  inviting  them  to  send  Dele- 
gates, which  are  to  be  transmitted  by  the  Secretary  of  State  through 
the  diplomatic  officers  to  the  respective  governments,  with  the  state- 
ment that  the  Congress  is  an  official  part  of  the  Universal  Exposition, 
which  is  to  be  held  at  St.  Louis,  Missouri,  in  1904,  under  the  auspices 
of  the  United  States  Government,  and  that  the  object  of  the  Con- 
gress has  the  warm  support  of  the  cognate  departments  of  the 
Government. 

2.  To  the  bar  associations  of  the  United  States  and  kindred  asso- 
ciations of  other  countries. 

3.  To  such  eminent  judges  and  jurists  throughout  the  world  as 
may  be  specially  appointed  as  Delegates. 

James  Hagerman,  Chairman. 


^ 


26     CONGRESS   OF  LAWYERS   AND   JURISTS 


The  action  of  the  Committee  and  the  plan  of  the  Con- 
gress, as  contained  in  the  above  report,  were,  on  motion, 
approved,  and  the  Committee  was  continued  with  full 
power  to  do  all  things  necessary  to  carry  out  the  purposes 
for  which  it  was  constituted.  Mr.  Hagerman,  who  had 
been  Chairman  of  the  Committee  since  its  organization, 
having  been  elected  President  of  the  American  Bar  Asso- 
ciation, retired  from  the  Committee,  and  appointed  in  his 
stead  Jacob  Klein  of  St.  Louis,  as  Chairman  of  the  Com- 
mittee. Frederick  V.  Brown  of  Minneapolis,  Minne- 
sota, was  appointed  a  member  of  the  Committee  in  place 
of  Hiram  F.  Stevens,  who  was  no  longer  able  to  serve. 
Out  of  the  general  committee  the  following  were  named 
by  the  Chairman  as  an  Executive  Committee:  Simeon  E. 
Baldwin  of  Connecticut;  Judson  Harmon  of  Ohio; 
Raleigh  C.  Minor  of  Virginia;  Walter  S.  Logan 
of  New  York;  and  William  A.  Ketcham  of  Indiana. 
Judge  Klein  became  ex  officio  Chairman  of  this  Com- 
mittee. 

At  the  twenty-seventh  annual  meeting  of  the  American 
Bar  Association,  held  in  Festival  Hall,  on  the  grounds  of 
the  Universal  Exposition,  St.  Louis,  in  1904,  immediately 
preceding  the  convening  of  the  Congress,  the  Committee 
on  Louisiana  Purchase  Exposition  reported  as  follows: 

To  the  American  Bar  Association: 

Your  Committee  on  the  Louisiana  Purchase  Exposition  respect- 
fully report?  that  since  the  last  meeting  of  this  Association  it  has  been 
active  with  the  local  committees  appointed  l)y  the  Louisiana  Purchase 
Exposition  Company  and  the  Bar  Associations  of  St.  Louis  and  of 
Missouri  in  working  out  the  details  for  the  Universal  Congress  of 
Lawyers  and  Jurists,  to  be  held  Septem^'er  28th  to  30th,  inclusive,  in 
Festival  Hall,  on  the  Exposition  grounds  at  St.  Louis. 

All  that  has  been  done  in  relation  to  the  matter  has  been  done  in 
co-operation  with  the  Committee  appointed  by  the  Louisiana  Pur- 


APPENDIX   A  327 

chase  Exposition  Company,  and  the  Committee  appointed  by 
the  Bar  Association  of  St.  Louis. 

It  was  found  necessary  to  organize  one  executive  committee  out 
of  these  various  committees,  which  has  been  designated  the  Com- 
mittee on  Plan  and  Scope,  and  this  Committee  has  completed  all 
the  arrangements  for  the  Congress,  and  has  secured  the  primary 
speakers  who  are  to  read  the  principal  papers  to  be  presented  to  the 
Congress  and  the  secondary  speakers,  who,  in  the  first  instance,  are 
to  discuss  the  several  papers  so  read. 

The  Committee  on  Plan  and  Scope,  so  selected,  consists  of  the 
following  gentlemen : 

Frederick  W.  Lehmann,  of  the  St.  Louis  Bar,  Chairman  of 
the  Committee  on  Congresses  of  the  Louisiana  Purchase  Exposition 
Company. 

Hon.  Amos  M.  Thayer,  Judge  of  the  United  States  Circuit 
Court  of  Appeals,  Eighth  Circuit. 

James  Hagerman,  President  of  the  American  Bar  Association. 

Jacob  Klein,  Chairman  of  the  Committee  of  the  American  Bar 
Association  on  the  Louisiana  Purchase  Exposition  and  President  of 
the  Bar  Association  of  St.  Louis. 

Edward  S.  Robert,  of  the  St.  Louis  Bar,  and  Charles 
Claelin  Allen,  of  the  St.  Louis  Bar. 

V.  MoTT  Porter,  the  Secretary  of  the  Bar  Association  of  St. 
Louis,  was  appointed  as  the  Secretary  of  the  Committees  having 
charge  of  all  matters  relating  to  the  Congress. 

The  Committee  on  Plan  and  Scope,  so  constituted,  obtained  the 
consent  of  Hon.  David  J.  Brewer,  Associate  Justice  of  the  Su- 
preme Court  of  the  United  States,  Hon.  Amos  M.  Thayer,  Judge 
of  the  United  States  Circuit  Court  of  Appeals,  Eighth  Circuit,  and 
of  Hon.  Simeon  E.  Bald^vin,  Judge  of  the  Supreme  Court  of  Er- 
rors of  Connecticut,  to  act  as  a  Committee  to  formulate  the  rules 
for  the  organization  and  procedure  of  the  Congress  and  a  pro- 
gramme of  the  papers  and  discussions. 

This  work  having  been  completed,  was  reported  to  the  Committee 
on  Plan  and  Scope,  and  a  printed  copy  thereof  sent  to  all  the  members 
of  the  Committee  of  this  Association  on  the  Louisiana  Purchase  Ex- 
position for  their  comments  and  approval. 

The  members  of  our  Committee  having  substantially  approved 
the  proposed  Rules,  Regulations,  and  Programme,  the  entire  matter 


328     CONGRESS   OF  LAWYERS  AND   JURISTS 

was  then  submitted  to  the  Executive  Committee  of  this  Association 
and  to  the  Executive  Committee  previously  appointed  out  of  the 
Committee  of  this  Association  on  the  Louisiana  Purchase  Exposition. 

The  Executive  Committee  of  the  Association  and  of  this  Com- 
mittee held  a  joint  meeting  at  the  Southern  Hotel,  in  the  city  of  St. 
Louis,  on  the  tenth  day  of  May,  1904,  at  which  meeting  the  matter 
was  more  carefully  considered. 

Subsequently,  on  May  11,  1Q04,  there  was  a  joint  session  held 
at  the  chambers  of  Judge  Thayer  in  St.  Louis,  of  the  two  bodies 
representing  this  Association  and  the  Committee  on  Plan  and  Scope 
above  mentioned,  and  the  Rules,  Regulations,  and  Programme  were 
then  finally  approved,  and  the  Committee  on  Plan  and  Scope  given 
full  authority  to  complete  all  arrangements,  and  do  whatever  might 
be  necessary  for  the  holding  of  the  Congress. 

Since  that  time  your  Committee  has  been  active  in  completing 
the  arrangements  and  details  for  the  holding  of  the  Congress,  which 
is  to  be  beld  by  special  permission  of  the  Exposition  Company  in 
Festival  Hall  on  the  Exposition  grounds. 

It  has  been  arranged  that  all  the  Delegates  to  the  Congress  shall 
receive  cards  of  admission  to  the  Exposition  grounds  for  the  entire 
week,  beginning  September  26th;  that  each  Delegate  shall  receive  a 
medal  indicating  his  membership,  and  arrangements  have  been  made 
by  the  local  committees  for  the  entertainment  of  the  primary  speakers 
and  foreign  Delegates  during  the  week. 

A  local  committee  of  the  St.  Louis  Bar  and  of  the  St.  Louis 
Bar  Association  has  raised  a  fund  to  defray  the  expenses  for  the 
entertainment  of  the  Congress  and  of  the  members  of  the  American 
Bar  Association,  amounting  in  the  aggregate  to  about  five  thousand 
dollars. 

The  Bar  Association  of  St.  Louis  has  appropriated  for  the  same 
purpose  the  sum  of  one  thousand  dollars. 

A  banquet  is  to  be  tendered  to  the  members  of  the  American  Bar 
Association  and  the  Delegates  to  the  Universal  Congress  of  Lawyers 
and  Jurists,  by  the  Exposition  Company  on  Wednesday  even- 
ing, September  28,  1904,  at  the  Tyrolean  Alps,  in  the  Exposition 
grounds. 

Ajjpended  to  this  report  is  a  printed  copy  of  the  Rules  for  the  or- 
ganization and  procedure  of  the  Congress,  and  of  the  Programme, 
and  a  list  of  all  the  accredited  Delegates  to  the  Congress. 


APPENDIX    A  329 


It  is  believed  by  your  Committee  that  much  good  will  result  from 
the  meeting  of  this  Congress,  and  that  the  participation  of  this  Asso- 
ciation therein,  and  in  promoting  the  same,  has  assured  the  success 
of  the  Congress,  which  is  to  begin  immediately  upon  the  close  of  the 
meeting  of  this  Association. 

Your  Committee  desires  to  acknowledge  the  efficient  services 
rendered  by  the  Committee  on  Programme,  and  by  the  Committee 
on  Plan  and  Scope,  above  mentioned,  and  especially  the  very  efficient 
services  rendered  by  Mr.  V.  Mott  Porter,  the  Secretary. 

Your  Executive  Committee,  at  the  solicitation  of  this  Committee, 
made  an  appropriation  of  Twenty-five  Hundred  ($2,500)  Dollars 
towards  defraying  the  expenses  of  the  Congress. 

It  is  understood  that  the  proceedings  of  the  Congress  will  be  printed 
for  distribution  among  the  members  of  this  Association,  the  Delegates 
to  the  Congress,  and  the  various  governments  participating  therein, 
as  well  as  the  bar  associations  and  universities  represented  in  the 
Congress. 

We  recommend  that  a  vote  of  thanks  to  the  Exposition  Company 
be  adopted  by  this  Association  for  its  efficient  participation  in  per- 
fecting the  arrangements  for  the  Congress,  as  well  as  for  the  generous 
entertainment  provided  by  it  for  this  Association  and  the  Congress. 

Respectfully  submitted, 

Jacob  Klein,  Chairman. 

In  compliance  with  its  promise,  the  Louisiana  Purchase 
Exposition  Company  appropriated  out  of  the  fund  that 
it  had  set  aside  for  the  several  international  congresses, 
the  sum  of  ten  thousand  dollars  for  the  Universal  Congress 
of  Lawyers  and  Jurists.  This  appropriation,  together 
with  the  contributions  of  the  bar  and  of  bar  associations 
already  mentioned  in  the  above  reports,  was  used  to 
defray  the  preliminary  expenses  of  the  Congress,  the 
expenses  connected  with  the  holding  of  the  Congress  itself, 
and,  finally,  the  printing  and  distribution  of  the  report  of 
the  proceedings. 

The  local  committees,  formed  from  the  members  of  the 
St.  Louis  Bar,  who  contributed  much  toward  the  success 


330     CONGRESS   OF   LAWYERS   AND    JURISTS 

of  the  Congress  by  providing  ways  and  means  of  enter- 
tainment and  looking  after  the  comfort  of  the  Delegates, 
were  composed  as  follows: 

The  Committee  on  Ways  mid  Means 
Edward  Cunningham,  Jr.,  Chairman 

I.  H.  LlONBERGER 

Thomas  K.  Skinker 
Paul  Bakewell 
James  C.  Jones 
Samuel  H.  West 
s.  l.  swarts 

The  Committee  on  Entertainment 
Warwick  Hough,  Chairman 
Henry  T.  Kent 
Leo  Rassieur 
John  F.  Shepley 
Paul  Bakewell 

A  Committee  of  Escort,  composed  of  younger  mem- 
bers of  the  St.  Louis  Bar,  who  acted  as  guides  to  the 
foreign  Delegates  and  helped  to  make  their  visit  agree- 
able, had  the  following  membership : 

Escort  Committee 

Allen  C.  Orrick,  Chairman;  George  T.  Weitzel,  E.  H. 
Angert,  J.  Clarence  Taussig,  I^uther  Ely  Smith,  Lee  W. 
Hagerman,  Charles  E.  L.  Thomas,  George  F.  Beck,  Sears 
Lehmann,  J.  Lionberger  Davis,  John  H.  HoUiday,  E.  M. 
Grossman,  S.  W.  Fordyce,  Jr.,  H.  Chouteau  Dyer,  W.  M. 
Tompkins,  H.  G.  Cleaveland,  Joseph  W.  Lewis,  Thomas 
G.  Rutledge,  W.  Christy  Bryan,  William  H.  Cocke, 
Charles  Cummings  Collins,  Manton  Davis,  V.  W.  Gar- 


APPENDIX   A  331 


esche,  Claud  D.  Hall,  W.  Scott  Hancock,  R.  A.  Holland, 
Jr.,  William  G.  Pettus,  Griswold  Smith,  Myron  Westover, 
Daniel  K.  Catlin,  George  V.  Reynolds,  J.  H.  Grovcr, 
Henry  W.  Blodgett,  Edward  D'Arcy,  H.  A.  Baker,  T.  F. 
Chaplin,  A.  E.  Kammerer. 


APPENDIX    B 

THE  HAGUE  CONFERENCES   ON   PRIVATE 
INTERNATIONAL  LAW 


THE     VARIOUS     CONVENTIONS     AND     CONVENTION 

PROJECTS 


A.     THE  INTERNATIONAL  LAW  OF  PROCEDURE 
THE  EXISTING  TREATY: 

CONVENTION 

POUR  ETABLIR  DES  REGLES  COMMUNES  CONCERNANT  PLUSIEURS  MA- 
TlfeRES  DE  DROIT  INTERNATIONAL  PRIV^,  SE  RAPPORTANT  A  LA 
PROCEDURE  CIVILE. 


SA  MAJESTE  LE  ROI  DES  BELGES,  SA  MAJESTE 
LE  ROI  D'ESPAGNE,  ET  EN  SON  NOM  SA  MAJESTE 
LA  REINE-REGENTE  DE  ROYAUME,  LE  PRESIDENT 
DE  LA  REPUBLIQUE  FRAN^AISE,  SA  MAJESTE  LE 
ROI  D'lTALIE,  SON  ALTESSE  ROYALE  LE  GRAND- 
DUC  DE  LUXEMBOURG,  DUC  DE  NASSAU,  SA  MA- 
JESTE LA  REINE  DES  PAYS-BAS  ET  EN  SON  NOM 
SA  MAJESTE  LA  REINE-REGENTE  DE  ROYAUME,  SA 
MAJESTE  LE  ROI  DE  PORTUGAL  ET  DES  ALGARVES, 
ETC.,  ETC.,  ET  LE  CONSEIL  FEDERAL  SUISSE,  desirant 
etablir  des  regies  communes  concernant  plusieurs  matieres  de  droit 
international  prive,  se  rapportant  a  la  procedure  civile,  ont  resolu 
de  conclure  un  traite  d  cet  efFet. 

a.  Communication  d'Actes  Judiciaires  ou  Extra-Judiciaires 

Article  Premier 
En   matiere   civile   ou   commerciale,  les   significations  d'actes  k 

r 

destination  de  I'dtranger  se   feront  dans  les  Etats  contractants  sur 
la  demande  des  officiers  du  minist^re  public  ou  des  tribunaux  d'un 

332 


APPENDIX    B  333 


de  ces  Etats,  addressee  a  I'autorite  competente  d'un  autre  de  ces 

Etats. 

La  transmission  se  fera  par  la  voie  diplomatique,  a  moins  que  la 
communication  directe  ne  soit  admise  entre  les  autorit^s  des  deux 
Etats. 

Art.  2 

La  signification  sera  faite  par  les  soins  de  I'autorite  requise. 
Elle  ne  pourra  etre  refusee  que  si  I'Etat,  sur  le  territoire  duquel  elle 
devrait  etre  faite,  la  juge  de  nature  a  porter  atteinte  a  sa  souverainet^ 
ou  a  sa  securite. 

A^T.  3 

Pour  faire  preuve  de  la  signification,  il  suffira  d'un  recepisse  date 
et  legalise  ou  d'une  attestation  de  I'autorite  requise,  constatant  le 
fait  et  la  date  de  la  signification. 

Le  recepisse  ou  I'attestation  sera  transcrit  sur  I'un  des  doubles 
de  I'acte  a  signifier  ou  annexe  a  ce  double,  qui  aurait  ete  transmis 
dans  ce  but. 

Art.  4 

Les  dispositions  des  articles  qui  precedent  ne  s'opposent  pas: 

1.  A  la  faculte  d'addresser  directement,  par  la  "^oie  de  la  poste, 
des  actes  aux  interesses  se  trouvant  a  I'etranger. 

2.  A  la  faculte  pour  les  interesses  de  faire  faire  des  significations 
directement  par  les  soins  des  officiers  ministeriels  ou  des  fonctionnaires 
competents  du  pays  de  destination. 

3.  A  la  faculte  pour  chaque  Etat  de  faire  faire,  par  les  soins  de 
ses  agents  diplomatiques  ou  consulaires,  les  significations  destinees 
a  I'etranger. 

Dans  chacun  de  ces  cas,  la  faculte  prevue  n'existe  que  si  les  lois 
des  Etats  interesses  ou  les  conventions  intervenues  entre  eux  I'ad- 
mettent. 

b.    Commissions  Rogatoires 

Art.  5 
En  matiere  civile  ou  commerciale,  I'autorite  judiciaire  d'un  Etat 
contractant  pourra,  conformement  aux  dispositions  de  sa  legislation, 
s'addresser  par  commission  rogatoire  a  I'autorite  competente  d'un 
autre  Etat  contractant  pour  lui  demander  de  faire,  dans  son  ressort, 
soit  un  acte  d'instruction,  soit  d'autres  actes  judiciaires. 


334     CONGRESS   OF   LAWYERS   AND   JURISTS 

Art.  6 

La  transmission  des  commissions  rogatoires  se  fera  par  la  voie 
diplomatique,  a  moins  que  la  communication  directe  ne  soit  admise 
entre  les  autorites  des  deux  Etats. 

Si  la  commission  rogatoire  n'est  pas  redigc  dans  la  langue  de 
I'autorite  requise,  die  devra,  sauf  entente  contraire,  etre  accompagnee 
d'lme  traduction,  faite  dans  la  langue  convenue  entre  les  deux  Etats 
int^resses,  et  certitiee  conforme. 

Art.  7 
L'autorite  judiciaire  a  laquelle  la  Commission  est  addressee  sera 
obligee  d'y  satisfaire.     Toutefois  elle  pourra  se  refuser  a  y  donner 
suite: 

1.  Si  I'authenticit^  du  document  n'  est  pas  etablie; 

2.  Si,  dans  I'Etat  requis,  I'execution  de  la  Commission  rogatoire 
ne  rentre  pas  dans  les  attributions  du  pouvoir  judiciaire. 

En  outre,  cette  execution  pourra  etre  refus(ie,  si  I'Etat,  sur  le 
territoire  duquel  elle  devrait  avoir  lieu,  la  juge  de  nature  a  porter 
atteinte  a  sa  souverainete  ou  a  sa  securite. 

Art.  8 
En    cas    d'incompetence    de    l'autorite   requise,  la    Commission 
rogatoire  sera  transmise  d'office  a  l'autorite  judiciaire   compdtente 
du  meme  Etat,  suivant  les  rfegles  etablies  par  la  legislation  de  celui-ci. 

Art.  9 

Dans  tous  les  cas  oii  la  Commission  rogatoire  n'est  pas  executee 
l)ar  l'autorite  requise,  celle-ci  en  informera  immediatement  I'autorite 
requerante,  en  indiquant,  dans  le  cas  de  Particle  7,  les  raisons  pour 
lesquelles  I'execution  de  la  Commission  rogatoire  a  ete  refusee  et, 
dans  le  cas  de  I'article  8,  l'autorite  a  laquelle  la  Commission  est 
transmise. 

Art.  jo 

L'autorite  judiciaire,  qui  procede  a  I'execution  d'une  Commission 
rogatoire,  appliquera  les  lois  de  son  pays,  en  ce  qui  concerne  les 
formes  a  suivre. 

Toutefois,  il  sera  defere  a  la  demande  de  I'autorite  requerante, 
tendant  a  ce  qu'il  soit  procede  suivant  une  forme  sp^ciale,  meme  non 
prdvue  par  la  legislation  de  l'P>tat  requis,  pourvu  que  la  forme  dont 
il  s'agit  ne  soit  pas  prohibee  par  cette  legislation. 


APPENDIX    B  335 


c.     Caution  <*  Judicatum  Solvi  " 

Art.  II 

Aucune  caution  ni  depot,  sous  quelque  denomination  que  ce  soit, 
ne  pent  etre  impose,  a  raison  soit  de  leur  qualite  d'etrangers,  soit  du 
defaut  de  domicile  ou  de  residence  dans  le  pays,  aux  nationaux 
d'un  des  Etats  contractants,  ayant  leurdomicile  dans  I'un  de  ces  Etats, 
qui  seront  demandeurs  ou  intervenants  devant  les  tribunaux  d'un 
autre  de  ces  Etats. 

Art.  12 
Les  condamnations  aux  frais  et  depens  du  proces,  prononcees 
dans  un  des  Etats  contractants  contre  le  demandeur  ou  I'intervenant 
dispenses  de  la  caution  ou  du  depot,  en  vertu  soit  de  Particle  ii,  soit 
de  la  loi  de  I'Etat  ou  Paction  est  intentee,  seront  rendues  executoires 
dans  chacun  des  autres  Etats  contractants  par  Pautorite  competente, 
d'apres  la  loi  du  pays. 

Art.  13 
L'autorite  competente  se  bornera  a  examiner: 

1.  Si,  d'apres  la  loi  du  pays  oil  la  condamnation  a  ete  prononc^e 
Pexpedition  de  la  decision  reunit  les  conditions  necessaires  a  son 
authenticite; 

2.  Si,  d'apres  la  meme  loi,  la  decision  est  passee  en  force  de  chose 
jugee. 

d.    Assistance  Judiciaire  Gratuite 

Art.  14 

Les  ressortissants  de  chacun  des  Etats  contractants  seront  admis 
dans  tous  les  autres  Etats  contractants  au  benefice  de  Passistance 
judiciaire  gratuite,  comme  les  nationaux  eux-memes,  en  se  confor- 
mant  a  la  legislation  de  PEtat  ou  Passistance  judiciaire  gratuite  est 
reclamee. 

Art.  15 

Dans  tous  les  cas,  le  certificat  ou  la  declaration  d'indigence  doit 
etre  delivre  ou  refu  par  les  autorites  de  la  residence  habituelle  de 
Petranger,  ou,  a  defaut  de  celle-ci,  par  les  autorites  de  sa  residence 
actuelle. 

Si  le  requerant  ne  reside  pas  dans  le  pays  ou  la  demande  est 
formee,  le  certificat  ou  la  declaration  d'indigence  sera  legalise  gra- 


33^     CONGRESS   OF  LAWYERS   AND   JURISTS 

tuitement  par  un  agent  diplomatique  ou  consulaire  du  pays  oii  le 
document  doit  etre  produit. 

Art.  1 6 

L'autorite  compdtente  j)our  delivrer  le  certificat  ou  recevoir  la 
declaration  d'indigence  pourra  prendre  des  renseignments  sur  la  situ- 
ation de  fortune  du  requ^rant  aujjres  des  autorites  des  autres  Etats 
contractants. 

L'autorite  charg^e  de  statuer  sur  la  demande  d'assistance  judi- 
ciaire  gratuite  conserve,  dans  les  limites  de  ses  attributions,  le  droit 
de  controler  les  certificates,  declarations  et  renseignments  qui  lui  sont 
fournis. 

e.     Contrainte  par  Corps 

Art.  17 

La  contrainte  par  corps,  soit  comme  moyen  d'execution,  soit 
comme  mesure  simplement  conservatoire,  ne  pourra  pas,  en  matiere 
civile  ou  commerciale,  etre  appiiquee  aux  etrangcrs  appartenant  a  un 
des  Etats  contractants  datis  les  cas  oii  elle  ne  seraii  pas  applicable  aux 
ressortissants  du  pays. 

DISPOSITIONS  FINALES 

I.  La  presente  Convention  sera  ratifide.  Les  ratifications  en 
seront  deposees  a  La  Haye  le  plus  tot  possible. 

II.  Elle  aura  une  duree  de  cinq  ans  a  partir  de  la  date  du  depot 
des  ratifications. 

III.  Elle  sera  renouvelee  tacitement  de  cinq  ans  en  cinq  ans,  sauf 
denonciation,  dans  un  delai  de  six  mois  avant  I'expiration  de  ce  terme 
par  Tune  des  Hautes  Parties  contractantes. 

La  denonciation  ne  produira  son  effet  qu'a  I'egard  du  ou  des 
pays  qui  I'auraient  notifi^e.  La  Convention  restera  exdcutoire  pour 
les  autres  etats. 

IV.  Le  Protocole  d'adhdsion  a  la  presente  Convention  pour  les 
Puissances  qui  ont  pris  part  a  la  Conference  de  La  Haye  de  juin- 
juillet  1894,  restera  ouvert  jusqu'au  i'^''  Janvier,  i8g8. 

EN  FOI  DE  QUOI  les  Plenipotentiaires  respectifs  ont  signd  la 
presente  Convention  et  I'ont  revetue  de  leurs  sceaux. 

Fait  a  La  Haye,  le  14  novembre  i8g6,  en  un  seul  exemplaire,  qui 
restera  deposd  dans  les  Archives  du  Gouvernement  des  Pays-Bas  et 


APPENDIX    B  337 


dont  des  copies,  certifiees  conformes,  seront  remises  par  voie  diplo- 
matique aux  Etats  signataires  ou  adherents. 

Ont  adhere  successivement;  la  SUEDE  et  la  NORVEGE  (i^' 
fevrier  1897),  I'ALLEMAGNE  (9  novembre  1897),  I'AUTRICHE- 
HONGRIE  (9  novembre  1897),  le  DANEMARK  (18  decembre 
1897),  la  ROUMANIE  (19-31  decembre  1897),  la  RUSSIE  (19-31 
decembre  1897). 


PROTOCOLE  ADDITIONNEL 


Les  Gouvernements  de  FRANCE,  de  BELGIQUE,  d'ES- 
PAGNE,  d'lTALIE,  de  LUXEMBOURG,  des  PAYS-BAS,  de 
PORTUGAL,  de  SUISSE,  Etats  signataires  de  la  Convention  de 
droit  international  prive  du  14  novembre  1896,  et  de  SUEDE  et  de 
NORVEGE,  Etats  adherents  a  cette  Convention,  ayant  jugeopportun 
de  completer  ladite  Convention,  les  soussignes,  apres  s'^tre  commu- 
nique leurs  pleins  pouvoirs  trouves  en  bonne  et  due  forme,  sont  con- 
venus  des  dispositions  suivantes: 

ad  Article  11 

II  est  bien  entendu  que  les  nationaux  d'un  des  Etats  contractants, 
qui  aurait  conclu  avec  un  autre  de  ces  Etats  une  Convention  speciale 
d'apres  laquelle  la  condition  de  domicile,  contenue  dans  I'article  11, 
ne  serait  pas  requise,  seront,  dans  les  cas  prevus  par  cette  Convention 
speciale  dispenses,  dans  I'Etat  avec  lequel  elle  a  ete  conclue,  de  la 
caution  et  du  depot  mentionnes  a  I'article  11,  meme  s'ils  n'ont  pas 
leur  domicile  dans  un  des  Etats  contractants. 

ad  Articles  I  et  II  des  Dispositions  Finales 

Le  depot  des  ratifications  pourra  avoir  lieu  des  que  la  majorite  des 
Hautes  Parties  contractantes  sera  en  mesure  de  le  faire  et  il  en  sera 
dresse  un  proces-verbal,  dont  une  copie,  certifie  conforme,  sera  remise 

r 

par  la  voie  diplomatique  a  tous  les  Etats  contractants. 

La  presente  Convention  entrera  en  vigueur  quatre  semaines  apres 
la  date  dudit  proces-verbal. 

Le  terme  de  cinq  ans  vise  a  I'article  II  commencera  a  courir  de 
cette  date,  meme  pour  les  Puissances  qui  auront  fait  le  depot  apres 
cette  date. 


338     CONGRESS   OF  LAWYERS  AND   JURISTS 

ad  Article  III  des  Dispositions  Finales 

Les  mots,  "sauf  denonciation  dans  un  delai  de  six  mois  avant 
1 'expiration,"  etc.,  seront  entendus  dans  ce  sens,  que  la  denonciation 
doit  avoir  lieu  au  moins  six  mois  avant  I'expiration. 

Le  present  Protocole  additionnel  fera  partie  integrante  de  la  Con- 
vention et  sera  ratifid  en  meme  temps  que  celle-ci. 

EN  FOI  DE  QUOI,  les  Plenipotentiaires  respectifs  ont  signe  le 
present  Protocole  additionnel  et  I'ont  revetu  de  leurs  sceaux. 

Fait  a  La  Haye,  le  22  mai  1897,  ^'^  ^^'^  ^^^^  exemplaire,  qui  restera 
depos^  dans  les  archives  du  Gouvernement  des  Pays-Bas  et  dont  des 
copies,  certifides  conformes,  seront  remises  par  la  voie  diplomatique 
aux  etats  signataires  ou  adherents. 

L'Allemagne,  I'Autriche-Hongrie,  le  Danemark,  la  Roumanie  et 
la  Russie  ont  adh^rd  a  ce  Protocole  additionnel  comme  a  la  convention 
elle-meme. 


B.    INTERNATIONAL  PRIVATE  LAW 
UPON  MARRIAGE: 


CONVENTION 

POUR  RI^XLER  LES  CONFLITS  DE  LOIS  EN  MATIh;RE  DE  MARIAGE 


Sa  Majeste  I'Empereur  d'Allemagne,  Roi  de  Prusse,  au  nom  de 
I'Empire  AUemand,  Sa  Majestd  I'Empereur  d'Autriche,  Roi  de 
Boheme,  etc.,  etc.,  et  Roi  Apostolique  de  Hongrie,  Sa  Majeste  le  Roi 
des  Beiges,  Sa  Majeste  le  Roi  d'Espagne,  le  President  de  la  Repul)- 
lique  Franjaise,  Sa  Majesty  le  Roi  d'ltalie,  Son  Altesse  Royale  Ic 
Grand  Due  de  Luxembourg,  Due  de  Nassau,  Sa  Majeste  la  Reine 
des  Pays-Bas,  Sa  Majeste  le  Roi  de  Portugal  et  des  Algarves,  etc., 
etc.,  Sa  Majeste  le  Roi  de  Roumanie,  Sa  Majesty  le  Roi  de  Suede  et 
Norvege,  au  nom  de  la  Suede,  et  le  Conseil  Federal  Suisse: 

Desirant  etablir  des  dispositions  communes  pour  regler  les  con- 
flits  de  lois  concernant  les  conditions  pour  la  validity  du  mariage, 

Ont  rdsolu  de  conclure  une  Convention  a  cet  effet  et  ont  nomme 
pour  leurs  Plenipotentiaires,  savoir  .... 


APPENDIX   B  339 


Article  Preauer 
Le  droit  de  contracter  mariage  est  regie  par  la  loi  Rationale  de 
chacun  des  futurs  epoux,  a  moins  qu'une  disposition  de  cette  loi  ne 
se  refere  expressement  a  une  autre  loi. 

Art.  2 
La  loi  du  lieu  de  la  celebration  peut  interdire  le  mariage  des 
etrangers  qui  serait  contraire  a  ses  dispositions,  concernant: 

1.  Les  degres  de  parente  ou  d'alliance  pour  lesquels  il  y  a  une 
prohibition  absolue; 

2.  La  prohibition  absolue  de  se  marier,  edictee  contre  les  cou- 
pables  de  I'adultere  a  raison  duquel  le  mariage  de  I'un  d'eux  a  6t6 
dissous; 

3.  La  prohibition  absolue  de  se  marier,  edictee  contre  des  per- 
sonnes  condamnees  pour  avoir,  de  concert,  attente  a  la  vie  du  conjoint 
de  I'une  d'elles. 

Le  mariage  celebre  contrairement  a  une  des  prohibitions  mention- 
nees  ci-dessus  ne  sera  pas  frappe  de  nullite,  pourv-u  qu'il  soit  valable 
d'apres  la  loi  indiquee  par  Particle  premier. 

Sous  la  reserve  de  I'application  du  premier  alinea  article  6  de  la 
presente  Convention,  aucun  Etat  contractant  ne  s'oblige  a  faire 
celebrer  un  mariage  qui,  a  raison  d'un  mariage  anterieur  ou 
d'obstacle  d'ordre  religieux,  serait  contraire  a  ses  lois.  La  violation 
d'un  empechement  de  cette  nature  ne  pourrait  pas  entrainer  la 
nullite  du  mariage  dans  les  pays  autres  que  celui  oil  le  mariage  a  ete 
celebre. 

Art.  3 

La  loi  du  lieu  de  la  celebration  peut  permettre  le  mariage  des 
etrangers  nonobstant  les  prohibitions  de  la  loi  indiquee  par  Particle 
premier,  lorsque  ces  prohibitions  sont  exclusivement  fondees  sur  des 
motifs  d'ordre  religieux. 

Les  autres  Etats  ont  le  droit  de  ne  pas  reconnaitre  comme  valable 
le  mariage  celebre  dans  ces  circonstances. 

Art.  4 

Les  etrangers  doivent,  pour  se  marier,  etablir  qu'ils  remplissent 
les  conditions  necessaires  d'apres  la  loi  indiquee  par  Particle  premier. 

Cette  justification  se  fera  soit  par  un  certificat  des  agents  diplo- 
matiques   ou  consulaires  autorises  par  I'Etat  dont  les  contractants 


340     CONGRESS   OF   LAWYERS  AND   JURISTS 

sont  les  ressortissants,  soit  par  tout  autre  mode  de  preuve,  pourvu  que 
les  Conventions  internationales  ou  les  autorit^s  du  pays  de  la  cele- 
bration reconnaissent  la  justification  comme  suffisante. 

Art.  5 

Sera  reconnu  partout  valable,  quant  a  la  forme,  le  mariage  cel^bre 
suivant  la  loi  du  pays  oii  il  a  eu  lieu. 

II  est  toutefois  entendu  que  les  pays  dont  la  legislation  exige  une 
celebration  religieuse  pourront  ne  pas  reconnaitre  comme  valables 
les  mariages  contractus  par  leurs  nationaux  a  I'etranger  sans  que 
cette  prescription  ait  ete  observee. 

Les  dispositions  de  la  loi  nationale,  en  matiere  de  publications 
devront  etre  respectees;  mais  le  defaut  de  ces  publications  ne  pourra 
pas  entrainer  la  nullite  du  mariage  dans  les  pays  autres  que  celui 
dont  la  loi  aurait  ete  violee. 

Une  copie  authentique  de  I'acte  de  mariage  sera  transmise  aux 
autorites  du  pays  de  chacun  des  epoux. 

Art.  6 

Sera  reconnu  partout  comme  valable,  quant  a  la  forme,  le  mariage 
celebre  devant  un  agent  diplomatique  ou  consulaire,  conform^ment 
a  sa  legislation,  si  aucune  des  parties  contractantes  n'est  ressortissante 
de  I'Etat  o\x  le  mariage  a  ete  celebre  et  si  cet  Etat  ne  s'y  oppose  pas. 
II  ne  peut  pas  s'y  opposer  quand  il  s'agit  d'un  mariage  qui,  a  raison 
d'un  mariage  anterieur  ou  d'un  obstacle  d'ordre  religieux,  serait 
contraire  a  ses  lois. 

La  reserve  du  second  alinea  de  Particle  5  est  applicable  aux 
mariages  diplomatiques  ou  consulaires. 

Art.  7 
Le  mariage,  nul  quant  k  la  forme  dans  le  pays  oil  il  a  ^t^  cdl^bre, 
pourra  n^anmoins  etre  reconnu  comme  valable  dans  les  autres  pays, 
si  la  forme  prescrite  par  la  loi  nationale  de  chacune  des  parties  a  et^ 
obsen'ee. 

Art.  8 
La  presente  Convention  ne  s'applique  qu'aux  mariages  cdl^bres 

r 

sur  le  territoire  des  Etats  contractants  entre  personnes  dont  une  au 

r 

moins  est  ressortissante  d'un  de  ces  Etats. 

Aucun  Etat  ne  s'oblige,  par  la  presente  Convention,  a  appliquer 
une  loi  qui  ne  serait  pas  celle  d'un  Etat  contractant. 


APPENDIX    B  341 


Art.  9 

La  presente  Convention,  qui  ne  s'applique  qu'aux  territoires 
europ^ens  des  litats  contractants,  sera  ratifide  et  les  ratifications  en 
seront  depos^es  a  La  Haye,  des  que  la  majorite  des  Hautes  Parties 
contractantes  sera  en  mesure  de  le  faire. 

II  sera  dresse  de  ce  depot  un  proces-verbal,  dont  une  copie, 
certifide  conforme,  sera  remise  par  la  voie  diplomatique  a  chacun 
des  Etats  contractants. 

Art.  io 

Les  Etats  non  signataires  qui  ont  ete  representes  a  la  troisieme 
Conference  de  droit  international  prive  sont  admis  a  adherer  pure- 
ment  et  simplement  a  la  prdsente  Convention. 

L'Etat  qui  desire  adherer  notifiera,  au  plus  tard  le  31  decembre 
1904,  son  intention  par  un  acte  qui  sera  depose  dans  les  archives  du 
Gouvernement  des  Pays-Bas.  Celui-ci  en  enverra  une  copie, 
certifiee  conforme,  par  la  voie  diplomatique  a  chacun  des  Etats  con- 
tractants. 

Art.  II 

La  presente  Convention  entrera  en  vigueur  le  soixantieme  jour  a 
partir  du  depot  des  ratifications  ou  de  la  date  de  la  notification  des 
adh&ions. 

Art.  12 

La  presente  Convention  aura  une  duree  de  cinq  ans  a  partir  de 
la  date  du  depot  des  ratifications. 

Ce  terme  commencera  a  courir  de  cette  date,  meme  pour  les 
Etats  qui  auront  fait  le  depot  apres  cette  date  ou  qui  auraient  adhere 
plus  tard. 

La  Convention  sera  renouvelee  tacitement  de  cinq  ans  en  cinq 
ans,  sauf  denonciation. 

La  denonciation  devra  etre  notifiee,  au  moins  six  mois  avant 
I'expiration  du  terme  vis^  aux  alineas  precedents,  au  Gouvernement 
des  Pays-Bas,  qui  en  donnera  connaissance  a  tous  les  autres  Etats. 

La  denonciation  ne  produira  son  effet  qu'a  I'egard  de  I'Etat  qui 
I'aura  notifiee.  La  Convention  restera  executoire  pour  les  autres 
Etats. 

En  foi  de  quoi  les  plenipotentiaires  respectifs  ont  signe  la  presente 
Convention  et  I'ont  rev^tue  de  leurs  sceaux. 


342      CONGRESS   OF  LAWYERS  AND   JURISTS 

Fait  h.  La  Haye,  le  douze  juin  mil  neuf  cent  deux,  en  un  seul 
exemplaire,  qui  sera  deposd  dans  les  archives  du  Gouvernement  des 
Pays-Bas,  et  dont  une  copie,  certifiee  conforme,  sera  remise  par  la 
voie  diplomatique  a  chacun  des  Etats  qui  ont  6t6  representds  a  la 
troisieme  Conference  de  droit  international  jjrive. 

UPON   DIVORCE: 


CONVENTION 

POUR    R^GLER    LES    CONFLITS    DE    LOIS    ET    DE    JURIDICTIONS    EN 
MATlfeRE   DE   DIVORCE   ET   DE   SKPARATION   DE   CORPS 


Sa  Majesty  I'Empereur  d'Allemagne,  roi  de  Prusse,  au  nom  de 
I'Empire  Allemand,  Sa  Majeste  I'Empereur  d'Autriche,  Roi  de 
Bolieme,  etc.,  etc.,  et  Roi  Apostolique  de  Hongrie,  Sa  Majesty  le 
Roi  des  Beiges,  Sa  Majeste  le  Roi  d'Espagne,  le  President  de  la 
R^publique  Franfaise,  Sa  Majeste  le  Roi  d'ltalie,  Son  Altesse  Royale 
de  Grand-Due  de  Luxembourg,  Due  de  Nassau,  Sa  Majeste  la 
Reine  des  Pays-Bas,  Sa  Majeste  le  Roi  de  Portugal  et  des  Algarves, 
etc.,  etc.,  Sa  Majeste  le  Roi  de  Roumaine,  Sa  Majeste  le  Roi  de 
Suede  et  de  Norvege,  au  nom  de  la  Suede,  et  le  Conseil  FM^ral  Suisse; 

Desirant  etablir  des  dispositions  communes  pour  regler  les  con- 
flits  de  lois  et  de  juridictions  en  matiere  de  divorce  et  de  separation 
de  corps, 

Ont  rdsolu  de  conclure  une  Convention,  a  cet  effet  et  ont  nomme 
pour  Leurs  Plenipotentiaires,  savoir  .... 

Article  Premier 

Les  epoux  ne  peuvent  former  une  demande  en  divorce  que  si 
leur  loi  nationale  et  la  loi  du  lieu  oii  la  demande  est  formee  admettent 
le  divorce  I'une  et  I'autre. 

II  en  est  de  meme  de  la  separation  de  corps. 

Art.  2 

Le  divorce  ne  peut  etre  demande  que  si,  dans  le  cas  dont  il  s'agit, 
il  est  admis  h  la  fois  par  la  loi  nationale  des  6poux  et  par  la  loi  du 
lieu  oO  la  demande  est  formde,  encore  que  ce  soit  pour  des  causes 
diffdrentes. 

II  en  est  de  meme  de  la  separation  de  corps. 


APPENDIX    B 


343 


Art.  3 
Nonobstant  les  dispositions  des  articles  premier  et  2,  la  loi  Rationale 
sera  seule  observee,  si  la  loi  du  lieu  oii  la  demande  est  formee  le 
prescrit  ou  le  permet 

Art.  4 
La  loi  nationale  indiquee  par  les  articles  precedents  ne  peut  etre 
invoquee  pour  donner,  a  un  fait  qui  s'est  passe  alors  que  les  epoux 
ou  I'un  d'eux  etaient  d'une  autre  nationalite,  le  caractere  d'une  cause 
de  divorce  ou  de  separation  de  corps. 

Art.  5 
La  demande  en  divorce  ou  en  separation  de  corps  peut  etre  formee: 

1.  Devant  la  juridiction  competente  d'apres  la  loi  nationale  des 
epoux; 

2.  Devant  la  juridiction  competente  du  lieu  ou  les  epoux  sont 
domicilies.  Si,  d'apres  leur  legislation  nationale,  les  epoux  n'ont 
pas  le  meme  domicile,  la  juridiction  competente  est  celle  du  domicile 
du  defendeur.  Dans  le  cas  d'abandon  et  dans  le  cas  d'un  changement 
de  domicile  opere  apres  que  la  cause  de  divorce  ou  de  separation  est 
inter\"enue,  la  demande  peut  aussi  etre  formee  devant  la  juridiction 
competente  du  dernier  domicile  commun.  Toutefois,  la  juridiction 
nationale  est  reservee  dans  la  mesure  oil  cette  juridiction  est  seule 
competente  pour  la  demande  en  divorce  ou  en  separation  de  corps. 
La  juridiction  etrangere  reste  competente  pour  un  mariage  qui  ne 
peut  donner  lieu  a  une  demande  en  divorce  ou  en  separation  de  corps 
devant  la  juridiction  nationale  competente. 

Art.  6 
Dans  le  cas  oii  des  epoux  ne  sont  pas  autorises  a  former  une 
demande  en  divorce  ou  en  separation  de  corps  dans  le  pays  ou  ils 
sont  domicilies,  ils  peuvent  neanmoins  I'un  et  I'autre  s'addresser  a 
la  juridiction  competente  de  ce  pays  pour  solliciter  les  mesures  pro- 
visoires  que  prevoit  sa  legislation  en  vue  de  la  cessation  de  la  vie  en 
commun.  Ces  mesures  seront  maintenues  si,  dans  le  delai  d'un  an, 
elles  sont  confirmees  par  la  juridiction  nationale;  elles  ne  dureront 
pas  plus  longtemps  que  ne  le  permet  la  loi  du  domicile. 

Art.  7 
Le  divorce  et  la  separation  de  corps,  prononces  par  un  tribunal 
competent  aux  termes  de  I'article  5,  seront  reconnus  partout,  sous  la 


344     CONGRESS   OF   LAWYERS  AND   JURISTS 

condition  que  les  clauses  de  la  prdsente  Convention  aient  ete  observees 
et  que,  dans  le  cas  ou  la  decision  aurait  ^t^  rendue  par  defaut,  le 
d^fendeur  ait  ct6  cite  conformement  aux  dispositions  speciales 
exig^es  par  sa  loi  nationale  pour  reconnaitre  les  jugements  Strangers. 
Seront  reconnus  ^galement  partout  le  divorce  et  la  separation 
de  corps  prononcds  par  une  juridiction  administrative,  si  la  loi  de 
chacun  des  epoux  reconnait  ce  divorce  et  cette  separation. 

Art.  8 

Si  les  epoux  n'ont  pas  la  meme  nationalite,  leur  derniere  legislation 
commune  devra,  pour  I'application  des  articles  precedents,  etre  con- 
sid^r^e  comme  leur  loi  nationale. 

Art.  9 

La  presente  Convention  ne  s'applique  qu'aux  demandes  en  divorce 
ou  en  separation  de  corps  form^es  dans  I'un  des  Ktats  contractants, 
si  I'un  des  plaideurs  au  moins  est  ressortissant  d'un  de  ces  Etats. 

Aucun  Etat  ne  s'oblige,  par  la  presente  Convention,  a  appliquer 
une  loi  qui  ne  serait  pas  celle  d'un  Etat  contractant. 

Art.  io 

La  {)resente  Convention,  qui  ne  s'applique  qu'aux  territoires 
europeens  des  Etats  contractants,  sera  ratifiee  et  les  ratifications  en 
seront  ddposees  a  La  Haye,  des  que  la  majorite  des  Hautes  Parties 
contractantes  sera  en  mesure  de  le  faire. 

II  sera  dresse  de  ce  depot  un  proces-verbal,  dont  une  copie, 
certifiee  conforme,  sera  remise  par  la  voie  diplomatique  a  chacun 

r 

des  Etats  contractants. 

Art.  II 

Les  Etats  non  signataires  qui  ont  ete  representes  a  la  troisieme 
Conference  de  Droit  International  Prive  sont  admis  a  adherer  pure- 
ment  et  simplement  a  la  presente  Convention. 

L'Etat  qui  desire  adherer  notifiera,  au  plus  tard  le  31  decembre 
1904,  son  intention  par  un  acte  qui  sera  depose  dans  les  archives  du 
Gouvernement  des  Pays-Bas.  Celui-ci  en  enverra  une  copie,  cer- 
tifiee  conforme,  par  la  voie  diplomatique  a  chacun  des  Etats  con- 
tractants. 


APPENDIX    B  345 


Art.  12 

La  presente  Convention  entrera  en  vigueur  le  soixantieme  jour  a 
partir  du  depot  des  ratifications  ou  de  la  date  de  la  notification  des 
adhesions. 

Art.  13 

La  presente  Convention  aura  une  dur^e  de  cinq  ans  a  partir  de 
la  date  du  depot  des  ratifications. 

Ce  terme  commencera  a  courir  de  cette  date,  meme  pour  les 
Etats  qui  auront  fait  le  depot  apres  cette  date  ou  qui  auraient  adher^ 
plus  tard. 

La  Convention  sera  renouvelee  tacitement  de  cinq  ans  en  cinq 
ans,  sauf  denonciation. 

La  denonciation  devra  etre  notifiee,  au  moins  six  mois  avant 
I'expiration  du  terme  vise  aux  alineas  precedents,  au  Gouvernement 
des  Pays-Bas,  qui  en  donnera  connaissance  a  tous  les  autres  Etats 
contractants. 

La  denonciation  ne  produira  son  effet  qu'a  I'^gard  de  I'Etat  qui 
I'aura  notifiee.  La  Convention  restera  executoire  pour  les  autres 
Etats. 

En  foi  de  quoi  les  Plenipotentiaires  respectifs  ont  signe  la  presente 
Convention  et  I'ont  revetue  de  leurs  sceaux. 

Fait  a  La  Haye,  le  douze  juin  mil  neuf  cent  deux,  en  un  seul 
exemplaire,  qui  sera  depos^  dans  les  archives  du  Gouvernement  des 
Pays-Bas  et  dont  une  copie,  certifiee  conforme,  sera  remise  par  la 
voie  diplomatique  a  chacun  des  Etats  qui  ont  ete  represent^s  a  la 
troisieme  Conference  de  Droit  International  Prive. 

UPON  THE  GUARDIANSHIP  OF  MINORS: 


CONVENTION 

POUR  REGLER  LA  TUTELLE  DES  MINEURS 


Sa  Majeste  I'Empereur  d'AUemagne,  Roi  de  Prusse,  au  nom 
de  I'Empire  AUemand,  Sa  Majeste  I'Empereur  d'Autriche,  Roi  de 
Boheme,  etc.,  etc.,  et  Roi  Apostolique  de  Hongrie,  Sa  Majeste  le 
Roi  des  Beiges,  Sa  Majeste  le  Roi  d'Espagne,  le  President  de  la 
Republique  Franyaise,  Sa  Majeste  le  Roi  d'ltalie.  Son  Altesse  Royale 


346      CONGRESS   OF   LAWYERS   AND    JURISTS 

le  Graiid-Duc  de  Luxembourg,  Due  de  Nassau,  Sa  Majeste  la  Reine 
des  Pays-Bas,  Sa  Majeste  le  Roi  de  Portugal  et  des  Algarves,  etc.,  etc., 
Sa  Majeste  le  Roi  de  Roumanie,  Sa  Majeste  le  Roi  de  Suede  et  de 
Norvege,  au  nom  de  la  Suede,  et  le  Conseil  Federal  Suisse: 

Desirant  etal)lir  des  dispositions  communes  pour  rdgler  la  tutelle 
des  mineurs  .... 

Article  Premier 
La  tutelle  d'un  mineur  est  r^glee  par  sa  loi  nationale. 

Art.  2 

Si  la  loi  nationale  n'organise  pas  la  tutelle  dans  le  pays  du  mineur 
en  vue  du  cas  oii  celui-ci  aurait  sa  residence  habituelle  a  I'etranger, 
I'agent  diplomatique  ou  consulaire  autorisd  par  I'Etatdont  le  mineur 
est  le  ressortissant  pourra  y  pourvoir,  conformement  a  la  loi  de  cet 
Etat,  si  I'Etat  de  la  residence  habituelle  du  mineur  ne  s'y  oppose  pas. 

Art.  3 

Toutefois,  la  tutelle  du  mineur  ayant  sa  residence  habituelle  a 
I'etranger  s'etablit  et  s'exerce  conformement  a  la  loi  du  lieu,  si  elle 
n'est  pas  ou  si  elle  ne  peut  pas  etre  constituee  conformement  aux 
dispositions  de  Particle  premier  ou  de  Particle  2. 

Art.  4 

L'existence  de  la  tutelle  etablie  conformement  a  la  disposition  de 
Particle  3  n'empeche  pas  de  constituer  une  nouvelle  tutelle  par 
application  de  Particle  premier  ou  de  Particle  2. 

II  sera,  le  plus  tot  possible,  donne  information  de  ce  fait  au 
Gouvernement  de  PEtat  ou  la  tutelle  a  d'abord  ete  organisee.  Ce 
Gouvernement  en  informera,  soit  Pautorite  qui  aurait  institue  la 
tutelle,  soit,  si  une  telle  autorit^  n'existe  pas,  le  tuteur  lui-meme. 

La  legislation  de  PEtat  oii  Pancienne  tutelle  etait  organisee  decide 
a  quel  moment  cette  tutelle  cesse  dans  le  cas  prevu  par  le  pr&ent 
article. 

Art.  5 

Dans  tous  les  cas,  la  tutelle  s'ouvre  et  prend  fin  aux  ^poques  et 
pour  les  causes  determinees  par  la  loi  nationale  du  mineur. 


APPENDIX    B  347 


Art.  6 

L'administration  tutelaire  s'etend  a  la  personne  et  a  I'ensemble 
des  biens  du  mineur,  quel  que  soit  le  lieu  de  leur  situation. 

Cette  regie  peut  recevoir  exception  quant  aux  immeubles  places 
par  la  ioi  de  leur  situation  sous  un  regime  foncier  special. 

Art.  7 

En  attendant  J 'organisation  de  la  tutelle,  ainsi  que  dans  tous  les 
cas  d'urgence,  les  mesures  necessaires  pour  la  protection  de  la  personne 
et  des  interets  d'un  mineur  etranger  pourront  etre  prises  par  les 
autorites  locales. 

Art.  8 

Les  autorites  d'un  Etat,  sur  le  territoire  duquel  se  trouvera  un 
mineur  etranger  dont  il  importera  d'etablir  la  tutelle,  informeront 
de  cette  situation,  des  qu'elle  sera  connue,  les  autorites  de  I'Etat  dont 
le  mineur  est  le  ressortissant. 

Les  autorites  ainsi  informees  feront  connaitre  le  plus  tot  possible 
aux  autorites  qui  auront  donne  I'avis  si  la  tutelle  a  ete  ou  si  elle  sera 
etablie. 

Art.  9 

La  presente  Convention  ne  s'applique  qu'a  la  tutelle  des  mineurs 
ressortissants  d'un  des  Etats  contractants,  qui  ont  leur  residence 
habituelle  sur  le  territoire  d'un  de  ces  Etats. 

Toutefois,  les  articles  7  et  8  de  la  presente  Convention  s'appliquent 
a  tous  les  mineurs  ressortissants  des  Etats  contractants. 

Art.  10 

La  presente  Convention,  qui  ne  s'applique  qu'aux  territoires 
europeens  des  Etats  contractants,  sera  ratifiee  et  les  ratifications  en 
seront  deposees  \  La  Haye,  des  que  la  majorite  des  Hautes  Parties 
contractantes  sera  en  mesure  de  le  faire. 

II  sera  dresse  de  ce  depot  un  proces-verbal  dont  une  copie,  certifiee 
conforme,  sera  remise  par  la  voie  diplomatique  a  chacun  des  Etats 
contractants. 

Art.  II 

Les  Etats  non  signataires  qui  ont  ete  representes  a  la  troisieme 
Conference  de  droit  international  prive  sont  admis  a  adherer  purement 
et  simplement  a  la  presente  Convention. 


348     CONGRESS   OF   LAWYERS   AND   JURISTS 


L'Etat  qui  desire  adherer  notifiera,  au  plus  tard  le  31  decern bre 
1904,  son  intention  par  un  acte  qui  sera  depos^  dans  les  archives  du 
Gouvernement  des  Pays-Bas.  Celui-ci  enverra  une  copie,  cer- 
tifi^e  conforme,  par  la  voic  diplomatique,  a  chacun  des  Etats  con- 
tractants. 

Art.  12 

La  presente  Convention  entrera  en  vigueur  le  soixantieme  jour  a 
partir  du  ddpot  des  ratifications  ou  de  la  date  de  la  notification  des 
adhesions. 

Art.  13 

La  presente  Convention  aura  une  dur^e  de  cinq  ans  a  partir  de 
la  date  du  d^pot  des  ratifications. 

Ce  terme  commencera  a  courir  de  cette  date,  meme  pour  les 
Etats  qui  auront  fait  le  depot  apres  cette  date  ou  qui  auraient  adhdr^ 

plus  tard. 

La  Convention  sera  renouvelee  tacitement  de  cinq  ans  en  cinq 
ans,  sauf  ddnonciation. 

La  ddnonciation  devra  etre  notifiee,  au  moins  six  mois  avant 
I'expiration  du  terme  vise  aux  alin&s  precedents,  au  Gouvernement 
des  Pays-Bas  qui  en  donnera  connaissance  a  tous  les  autres  Etats. 

La  denonciation  ne  produira  son  effet  qu'al'egard  de  I'Etat  qui 
I'aura  notifiee.  La  Convention  restera  executoire  pour  les  autres 
Etats. 

En  foi  de  quoi,  les  Plenipotentiaires  respectifs  ont  signd  la  presente 
Convention  et  I'ont  revetue  de  leurs  sceaux. 

Fait  a  La  Haye,  le  douze  juin  mil  neuf  cent  deux,  en  un  seul 
exemplaire  qui  sera  depose  dans  les  archives  du  Gouvernement  des 
Pays-Bas  et  dont  une  copie,  certifiee  conforme,  sera  remise  par  voie 
diplomatique  a  chacun  des  Etats  qui  ont  6te  representes  a  la  troisieme 
Conference  de  droit  international  prive. 


APPENDIX    B  349 


UPON  SUCCESSION: 


PROJET  D'UNE  CONVENTION  SUR  LES  CONFLITS  DE 
LOIS  EN  MATIERE  DE  SUCCESSIONS  ET  DE  TESTA- 
MENTS 

Desirant  etablir  des  dispositions  communes  concernant  les  suc- 
cessions et  les  testaments, 

Ont  resolu  de  conclure  une  Convention  a  cet  effet  et  ont,  en  con- 
sequence, nomme  pour  leurs  plenipotentiaires,  savoir: 

lesquels,  apres  s'etre  communique  leurs  pleins  pouvoirs,  trouves  en 
bonne  et  due  forme,  sont  convenus  des  dispositions  suivantes: 

Article  i 

Les  successions,  en  ce  qui  concerne  la  designation  des  successibles 
I'ordre  dans  lequel  ils  sont  appeles,  les  parts  qui  leur  sont  attribuees 
les  rapports,  la  quotite  disponible  et  la  reserve,  sont  soumises  a  la 
loi  nationale  du  defunt,  quels  que  soient  la  nature  des  biens  et  le 
pays  oij  ils  se  trouvent. 

La  meme  regie  s'applique  a  la  validite  intrinseque  et  aux  effets 
des  dispositions  testamentaires. 

Article  2 

Les  biens  hereditaires  ne  sont  acquis  a  I'Etat  sur  le  territoire 
duquel  ils  se  trouvent  que  il  n'y  a  aucun  ayant — droit  testamentaire 
ou,  abstraction  faite  de  I'Etat  Stranger,  aucun  successible  ab  intestat 
d 'apres  la  loi  nationale  du  defunt. 

Article  3 

Les  testaments  sont  valables,  quant  a  la  forme,  s'ils  satisfont  aux 
prescriptions,  soit  de  la  loi  du  lieu  oia  ils  sont  faits,  soit  de  la  loi  du 
pays  auquel  appartenait  le  defunt  au  moment  oil  il  disposait. 

Neanmoins,  lorsque,  pour  le  testament  fait  par  une  personne 
hors  de  son  pays,  sa  loi  nationale  exige  ou  defend  une  forme  deter- 
minee,  I'inobservation  de  cette  regie  peut  entrainer  la  nullite  du  tes- 
tament dans  le  pays  dont  le  testateur  etait  le  sujet,  sans  empecher, 
d'ailleurs,  si  le  testament  est  conforme  a  la  loi  du  lieu  ou  il  a  ^te  fait, 
que,  la  et  dans  les  autres  pays  il  soit  valable. 


350      CONGRESS   OF   LAWYERS   AND    JURISTS 

Sont  valables,  quant  a  la  forme,  les  testaments  des  etrangers,  s'ils 
ont  6t6  regus,  conformdment  a  leur  loi  nationale,  par  les  agents 
diplomatiques  ou  consulaires  autoris^s  par  I'Etat  dontces  Strangers 
etaient  les  ressortissants. 

Article  4 

Les  regies  de  I'article  i*^',  alinea  2,  et  de  I'article  3,  concernant 
une  disposition  testamentaire,  sont  ^galement  applicables  a  la  revo- 
cation d'une  pareille  disposition. 

Article  5 

Les  autorites  de  I'Etat  sur  le  territoire  duquel  se  trouvent  des 
biens  apparlenant  a  la  succession  pourront  prendre  les  mesures 
n^cessaires  pour  en  assurer  la  conversation,  a  moins  qu'il  n'y  soit 
pourvu,  en  vertu  de  conventions  speciales,  par  les  agents  diploma- 
tiques ou  consulaires  autorises  par  I'Etat  dont  le  defunt  etait  le 
ressortissant. 

Article  6 

§  1.  Est  reservee  I'application  des  lois  territoriales  qui  ont  exclu- 
sivement  pour  but  d'empecher  la  division  des  proprietes  rurales, 
ainsi  que  I'application  des  lois  relatives  aux  immeubles  places  sous 
un  regime  foncier  special. 

§2.  Est  egalement  reserv^ee,  dans  chaque  Etat,  I'application  des 
lois  de  cet  Etat,  d'une  nature  imperative  ou  prohibitive,  concernant 
les  matieres  qui  seront  indiquees  d'un  commun  accord  par  les  Etats 
contractants  dans  un  protocole  additionnel,  destine  a  etre  ratifie  en 
meme  temps  que  la  presente  Convention. 

§  3.  Pour  profiterde  la  reserve  prevue  dans  les  paragraphes  prece- 
dents, chaque  Gouvernement  doit  communiquer  au  Gouvernement 
des  Pays-Bas  I'enum^ration  des  dispositions  de  ses  lois  qui,  par 
derogation  aux  regies  de  la  presente  Convention,  seront  applicables 
a  toutes  les  successions,  meme  a  celles  des  ressortissants  des  autres 
Etats  contractants.  Cette  enumeration  pourra  toujours,  dans  les 
limites  tracees  aux  paragraphes  prdcddents,  etre  modifiee  suivant 
les  convenances  de  chaque  Gouvernement,  qui  fera  egalement  con- 
naitre  sa  determination  au  Gouvernement  des  Pays-Bas.  Ce 
Gouvernement  transmettra,  par  la  voie  diplomatique,  aux  Etats 
contractants  les  communications  dont  il  s'agit,  en  indiquant  la  date 
a  laquelle  il  les  aura  revues. 


APPENDIX    B  351 


§  4.  Les  dispositions  reservees  par  un  Etat  en  vertu  des  regies 
precedentes  ne  s'appliqueront  qu'aux  successions  des  ressortissants 
des  autres  Etats  contractants  cjui  s'ouvriront  soixante  jours  apres  la 
communication  faite  au  Gouvernement  des  Pays-Bas. 

§  5.  Les  dispositions  des  paragraphes  precedents  ne  sauraient 
autoriser  un  Etat  contractant  a  soustraire  a  I'application  de  la  loi 
nationales  du  defunt  les  immeubles  non  compris  parmi  ceux  qui  sont 
vis^s  au  paragraphe  i*'"'  ou  a  faire  echec  a  I'application  de  Particle  7. 

Article  7 

A  regard  des  matieres  visees  dans  I'article  i  "^^  les  etrangers  ressor- 
tissants de  I'un  des  Etats  contractants,  sont  entierement  assimiles 
aux  nationaux.  Seront,  par  consequent,  sans  application,  dans  les 
rapports  des  Etats  contractants,  les  dispositions  instituant  au  profit 
des  ressortissants  d'un  Etat,  sur  les  biens  situes  dans  son  territoire, 
des  droits  de  prelevement  dont  I'efTet  serait  de  modifier  indirectement 
les  regies  posees  dans  la  presente  Convention. 

Les  dits  droits  de  prelevement  seront  au  contraire  maintenus,  a 
titre  de  compensation,  si,  par  suite  de  restrictions  apportees  au 
principe  de  I'application  de  la  loi  nationale  du  defunt,  les  sujets  d'un 
Etat  sont  prives,  quant  aux  biens  situes  dans  les  territoires  d'un  autre 
Etat,  de  tout  ou  partie  du  benefice  des  droits  hereditaires  qu'ils 
auraient  eus  d'apres  la  loi  nationale  du  defunt. 

Article  8 

Aussitot  que  possible  apres  la  signature  de  la  presente  Convention, 
les  Etats  contractants  etabliront  d'un  commun  accord  les  regies 
concernant  la  competence  et  la  procedure  en  matiere  de  successions 
et  de  testaments. 

La  Convention  contenant  ces  regies  sera  ratifie  en  meme  temps 
que  la  presente  Convention. 

Article  9 

La  presente  Convention  ne  s'applique  que  dans  le  cas  ou  le  defunt, 
au  moment  de  son  deces,  appartenait  a  un  des  Etats  contractants. 

Chacun  des  Etats  contractants  conserve  la  faculte  d'avoir  avec  un 
Etat  non-contractant  une  convention  speciale  soumettant  a  une  loi 
autre  que  la  loi  nationale  les  successions  de  ses  ressortissants. 

Si  la  presente  Convention  se  trouve  etre,  en  tout  ou  en  partie, 
incompatible   avec   une   convention   speciale   de   ce   genre,   celle-d 


352      CONGRESS   OF   LAWYERS   AND   JURISTS 

s'appliquera  entre  les  Etats  qui  I'auront  conclue,  sans  qu'ils  aient 
k  tenir  compte  de  la  prdsente  Convention.  De  leur  c6t^,  les  autres 
Etats  contractants  pourront,  dans  ce  cas,  ne  pas  appliquer  la  presente 
Convention  dans  la  mesure  ou  elle  se  trouvera  exclue  par  la  conven- 
tion sp^ciale. 

Article  io 

La  presente  Convention  sera  ratifiee  et  les  ratifications  en  seront 
deposees  a  La  Haye,  des  que  cinq  des  Hautes  Parties  contractantes 
seront  en  mesure  de  le  faire. 

II  sera  dressd  de  tout  d^pot  de  ratifications  un  proces-verbal,  dont 
une  copie,  certifi^e  conforme,  sera  remise  par  la  voie  diplomatique 

a  chacun  des  Etats  contractants. 

Article  ii 

La  presente  Convention  s'applique  de  plein  droit  aux  territoires 
europeens  des  Etats  contractants. 

Si  un  Etat  contractant  en  desire  la  mise  en  vigueur  dans  ses 
territoires,  possessions  ou  colonies,  situes  hors  de  I'Europe,  ou  dans 
ses  circonscriptions  consulaires  judiciaires,  il  notifiera  son  intention 
a  cet  eflfet  par  un  acte,  qui  sera  depos^  dans  les  archives  du  Gouverne- 
ment  des  Pays-Bas.  Celui-ci  en  enverra,  par  la  voie  diplomatique, 
une  copie,  certifi^e  conforme,  a  chacun  des  Etats  contractants.  La 
Convention  entrera  en  vigueur  sans  les  rapports  entre  les  Etats  qui 
repondront  par  une  declaration  afllirmative  a  cette  notification  et  les 
territoires,  possessions  ou  colonies,  situes  hors  de  I'Europe,  et  les 
circonscriptions  consulaires  judiciaires,  pour  lesquels  la  notification 
aura  6t6  faite.  La  declaration  affirmative  sera  deposee,  de  meme, 
dans  les  archives  du  Gouvernement  des  Pays-Bas,  qui  en  enverra, 
par  la  voie  diplomatique,  une  copie,  certifide  conforme,  a  chacun  des 
Etats  contractants. 

Article  12 

Les  Etats  repr^sentfe  a  la  quatrieme  Conference  de  droit  inter- 
national privd  sont  admis  a  signer  la  presente  Convention  jusqu'au 
d^pot  des  ratifications  prevu  par  I'article  10,  alinea  i". 

Apres  ce  d(?p6t,  ils  seront  toujours  admis  a  y  adherer  purement  et 
simplement.  L'Etat  qui  desire  adhdrer  notifie  son  intention  par  un 
acte  qui  sera  ddpose  dans  les  archives  du  Gouvernement  des  Pays-Bas. 


APPENDIX    B  353 


Celui-ci  en  enverra,  par  la  voie  diplomatique,  une  copie,  certifiee 
conforme,  a  chacun  des  Etats  contractants. 

Article  13 

La  presente  Convention  entrera  en  vigueur  le  soixantieme  jour  a 
partir  du  depot  des  ratifications  prevu  par  I'article  10,  alinea  1"^. 

Dans  le  cas  de  I'article  11,  alinea  2,  elle  entrera  en  vigueur  quatre 
mois  apres  la  date  de  la  declaration  affirmative  et,  dans  le  cas  de 
I'article  12,  alinea  2,  le  soixantieme  jour  apres  la  date  de  la  notifica- 
tion des  adhesions. 

II  est  entendu  que  les  notifications  prevues  par  I'article  1 1 ,  alinea 
2,  ne  pourront  avoir  lieu  qu'apres  que  la  presente  Convention  aura 
et^  mise  en  vigueur  conformement  a  I'alinea  i'''  du  present  article. 

Article  14 

La  presente  Convention  aura  une  duree  de  5  ans  a  partir  de  la 
date  indiquee  dans  I'article  13,  alinea  i"'. 

Ce  terme  commencera  a  courir  de  cette  date,  meme  pour  les 
Etats  qui  auront  adhere  posterieurement  et  aussi  en  ce  qui  concerne 
les  declarations  affirmatives  faites  en  vertu  de  I'article  11,  alinea  2. 

La  Convention  sera  renouvelee  tacitement  de  cinq  ans  en  cinq 
ans,  sauf  denonciation. 

La  denonciation  devra  etre  notifiee,  au  moins  six  mois  avant 
I'expiration  du  terme  vise  aux  alineas  2  et  3,  au  Gouvernement  des 
Pays-Bas,  qui  en  donnera  connaissance  a  tous  les  autres  Etats. 

La  denonciation  pent  ne  s'appliquer  qu'aux  territoires,  possessions 
ou  colonies,  situes  hors  de  I'Europe,  ou  aussi  aux  circonscriptions  con- 
sulaires  judiciaires,  compris  dans  une  notification  faite  en  vertu  de 
I'article  11,  alinea  2. 

La  denonciation  ne  produira  son  effet  qu'a  I'egard  de  I'etat  qui 
I'aura  notifiee.  La  Convention  restera  executoire  pour  les  autres 
etats  contractants. 

[Fait  a  La  Haye,  le  7  juin,  1904.] 


354     CONGRESS   OF  LAWYERS  AND   JURISTS 

UPON  THE  EFFECTS  OF  MARRIAGE,  UPON  THE  MU- 
TUAL PERSONAL  RIGHTS  AND  DUTIES  OF  THE 
SPOUSES  AND  THEIR  RIGHTS  OF  PROPERTY: 


PROJET  D'UNE  CONVENTION  CONCERNANT  LES 
CONFLITS  DE  LOIS  RELATIFS  AUX  EFFETS  DU 
MARIAGE  SUR  LES  DROITS  ET  LES  DEVOIRS 
DES  EPOUX  DANS  LEURS  RAPPORTS  PERSONNELS 
ET    SUR    LES    BIENS    DES    EPOUX 

Desirant  etablir  les  dispositions  communes  concernant  les  effets 
du  mariage  sur  les  droits  et  les  devoirs  des  epoux  dans  leurs  rapports 
personnels  et  sur  les  biens  des  epoux, 

Ont  resolu  de  conclure  une  Convention  a  cet  effet  et  ont,  en  con- 
sequence, nomme  pour  leurs  plenipotentiaires,  savoir: 

lesquels,  apres  s'etre  communique  leurs  pleins  pouvoirs,  trouves  en 
bonne  et  due  forme,  sont  convenus  des  dispositions  suivantes: 


I.     LES   DROITS   ET  LES   DEVOIRS   DES   EPOUX   DANS 
LEURS  RAPPORTS  PERSONNELS 

Article  i 

Les  droits  et  les  devoirs  des  epoux  dans  leurs  rapports  personnels 
sont  regis  par  leur  loi  nationale. 

Toutefois,  ces  droits  et  ces  devoirs  ne  peuvent  etre  sanctionnes 
c^ue  par  les  moyens  que  permet  egalement  la  loi  du  pays  ou  la  sanction 
est  requise. 

II.     LES  BIENS  DES  EPOUX 

Article  2 

En  I'absence  de  contrat,  les  effets  du  mariage  sur  les  biens  des 
epoux,  tant  immeubles  que  meubles,  sont  regis  par  la  loi  nationale  du 
mari  au  moment  de  la  celebration  du  mariage. 

Le  changement  de  nationalite  des  dpoux  ou  de  I'un  d'eux  n'aura 
pas  d'influence  sur  le  regime  des  biens. 


APPENDIX    B  355 


Article  3 

La  capacite  de  chacun  des  futurs  epoux  pour  conclure  un  contrat 
de  mariage  est  determinee  par  sa  loi  nationale  au  moment  de  la 
calibration  du  mariage. 

Article  4 

La  loi  nationale  des  epoux  decide  s'ils  peuvent,  au  cours  du 
mariage,  soit  faire  un  contrat  de  mariage,  soit  resilier  ou  modifier 
leurs  conventions  matrimoniales. 

Le  changement  qui  serait  fait  au  regime  des  biens  ne  peut  pas 
avoir  d'efifet  rdtroactif  au  prejudice  des  tiers. 

Article  5 

La  validity  intrinseque  d'un  contrat  de  mariage  et  ses  effets  sont 
rdgis  par  la  loi  nationale  du  mari  au  moment  de  la  celebration  du 
mariage,  ou,  s'il  a  ete  conclu  au  cours  du  mariage,  par  la  loi  nationale 
des  ^poux  au  moment  du  contrat. 

La  meme  loi  decide  si  et  dans  quelle  mesure  les  ^poux  ont  la 
liberte  de  se  referer  a  une  autre  loi;  lorsqu'ils  s'y  sont  refer^s,  c'est 
cette  derniere  loi  qui  determine  les  effets  du  contrat  de  mariage. 

Article  6 

Le  contrat  de  mariage  est  valable  quant  a  la  forme,  s'il  a  ete 
conclu  soit  conformement  a  la  loi  du  pays  oii  il  a  etd  fait,  soit  conforme- 
ment  a  la  loi  nationale  de  chacun  des  futurs  ^poux  au  moment  de  la 
calibration  du  mariage,  ou  encore,  s'il  a  ete  conclu  au  cours  du 
mariage,  conformement  a  la  loi  nationale  de  chacun  des  ^poux. 

Lorsque  la  loi  nationale  de  I'un  des  futurs  epoux  ou,  si  le  contrat 
est  conclu  au  cours  du  mariage,  la  loi  nationale  de  I'un  des  epoux 
exige  comme  condition  de  validite  que  le  contrat,  meme  s'il  est 
conclu  en  pays  etranger,  ait  une  forme  determinee,  ses  dispositions 
doivent  etre  observees. 

Article  7 

Les  dispositions  de  la  presente  Convention  ne  sont  pas  applicables 
aux  immeubles  places  par  la  loi  de  leur  situation  sous  un  regime 
foncier  special. 

Article  8 

Chacun  des  Etats  contractants  se  reserve: 

I.  d'exiger  des  formaUtes  speciales  pour  que  le  rdgime  des  biens 
puisse  etre  invoque  contre  les  tiers; 


356      CONGRESS   OF  LAWYERS  AND   JURISTS 

2.  d'appliquer  des  dispositions  ayant  pour  but  de  proteger  les 
tiers  dans  leurs  relations  avec  une  femme  marine  exergant  una  pro- 
fession sur  le  territoire  de  cet  Etat. 

Les  Etats  contractants  s'engagent  a  se  communiquer  les  disposi- 
tions legales  applicables  d'apres  le  present  article. 

III.     DISPOSITIONS  GENERALES 
Article  9 

Si  les  epoux  ont  acquis,  au  cours  du  mariage,  une  nouvelle  et 
meme  nationalite,  c'est  leur  nouvelle  loi  nationale  qui  sera  appliquee 
dans  les  cas  vis^s  aux  articles  i,  4  et  5. 

S'il  advient,  au  cours  du  mariage,  que  les  epoux  n'aient  pas  la 
meme  nationalite,  leur  derniere  legislation  commune  devra,  pour 
I'application  des  articles  precites,  etre  consideree  comme  leur  loi 
nationale. 

Article  10 

La  presente  Convention  n'aura  pas  d'application  lorsque,  d'apres 
les  articles  precedents,  la  loi  qui  devrait  etre  appliquee  ne  serait  pas 
celle  d'un  Etat  contractant. 

IV.     DISPOSITIONS  FINALES 

x\rTICLE    II 

La  presente  Convention  sera  ratifiee  et  les  ratifications  en  seront 
d^posees  a  La  Haye,  des  que  six  des  Hautes  Parties  contractantes 
seront  en  mesure  de  le  faire. 

II  sera  dresse  de  tout  depot  de  ratifications  un  proc^s-verbal, 
dont  une  copie,  certifiee  conforme,  sera  remise  par  la  voie  diploma- 
tique  a  chacun  des  Etats  contractants. 

Article  12 

La  presente  Convention  s'applique  de  plein  droit  aux  territoires 
europeens  des  Etats  contractants. 

Si  un  Etat  contractant  en  desire  la  mise  en  vigueur  dans  ses 
territoires,  possessions,  ou  colonies,  situes  hors  de  I'Europe,  ou  dans 
ses  circonscriptions  consulaires  judiciaires,  il  notifiera  son  intention 
a  cet  effet  par  un  acte,  qui  sera  depose  dans  les  archives  du  Gouverne- 
ment  des  Pays-Bas.     Celui-ci  en  enverra,  par  la  voie  diplomatique, 


APPENDIX    B  357 


une  copie,  certifiee  conforme,  a  chacun  des  Etats  contractants.  La 
Convention  entrera  en  vigueur  dans  les  rapports  entre  les  Etats  qui 
repondront  par  une  declaration  affirmative  a  cette  notification  et  les 
territoires,  possessions  ou  colonies,  situes  hors  de  I'Europe,  et  les 
circonscriptions  consulaires  judiciaires,  pour  lesquels  la  notification 
aura  ete  faite.  La  declaration  affirmative  sera  deposee,  de  meme, 
dans  les  archives  du  Gouvernement  des  Pays-Bas,  qui  en  enverra, 
par  la  voie  diplomatique,  une  copie,  certifiee  conforme,  a  chacun  des 
Etats  contractants. 

Article  13 

r 

Les  Etats  representes  a  la  quatrieme  Conference  de  droit  inter- 
national prive  sont  admis  a  signer  la  presente  Convention  jusqu'au 
depot  des  ratifications  prevu  par  Particle  11,  alinea  i^''. 

Apres  ce  depot,  ils  seront  toujours  admis  a  y  adherer  purement  et 
simplement.  L'Etat  qui  desire  adherer  notifie  son  intention  par  un 
acte  qui  sera  depose  dans  les  archives  du  Gouvernement  des  Pays- 
Bas.  Celui-ci  en  enverra,  par  la  voie  diplomatique,  une  copie,  certi- 
fiee  conforme,  a  chacun  des  Etats  contractants. 

Article  14 

La  presente  Convention  entrera  en  vigueur  le  soixantieme  jour 
a  partir  du  depot  des  ratifications  prevu  par  Particle  11,  alinea  i*''. 

Dans  le  cas  de  Particle  12,  alinea  2,  elle  entrera  en  vigueur  quatre 
mois  apres  la  date  de  la  declaration  affirmative  et,  dans  le  cas  de 
Particle  13,  ahnea  2,  le  soixantieme  jour  apres  la  date  de  la  notifica- 
tion des  adhesions. 

II  est  entendu  que  les  notifications  prdvues  par  Particle  12,  alinea  2, 
ne  pourront  avoir  lieu  qu'apres  que  la  presente  Convention  aura  ete 
mise  en  vigueur  conformement  a  Palinea  2  du  present  article. 

Article  15 

La  presente  Convention  aura  une  duree  de  5  ans  a  partir  de  la 
date  indiquee  dans  Particle  14,  alinea  i*"". 

Ce  terme  commencera  a  courir  de  cette  date,  meme  pour  les  Etats 
qui  auront  adhere  posterieurement  et  aussi  en  ce  qui  concerne  les 
declarations  affirmatives  faites  en  vertu  de  Particle  12,  alinea  2. 

La  Convention  sera  renouvelee  tacitement  de  cinq  ans  en  cinq 
ans,  sauf  denonciation. 

La  denonciation  devra  etre  notifiee,  au  moins  six  mois  avant 


358     CONGRESS   OF   LAWYERS  AND   JURISTS 

I'expiralion  du  terme  vise  aux  alineas  2  et  3,  au  Gouvernement  des 
Pays-Bas,  qui  en  donnera  connaissance  k  tous  les  autres  Etats. 

■  La  denonciation  peut  ne  s'appliquer  qu'aux  territoires,  posses- 
sions, ou  colonies,  situes  hors  de  I'Europe,  ou  aussi  aux  circonscrip- 
tions  consulaires  judiciaires,  compris  dans  une  notification  faite  en 
vertu  de  I'article  12,  alinea  2. 

La  denonciation  ne  produire  son  effet  qu'k  I'egard  de  I'Etat  qui 
I'aura  notifiee.  La  Convention  restera  exdcutoire  pour  les  autres 
Etats  contractants. 

[Fait  a  La  Haye  le  7  Janvier  1904.] 


UPON  THE  GUARDIANSHIP  OF  MAJOR  PERSONS: 


\\.  PROJET  D'UNE  CONVENTION  CONCERNANT 
L'INTERDICTION  ET  LES  MESURES  DE  PROTEC- 
TION  ANALOGUES 

Desirant  etablir  des  dispositions  communes  concernant  I'inter- 
diction  et  les  mesures  de  protection  analogues, 

Ont  r^solu  de  conclure  une  Convention  a  cet  effet  et  ont,  en  con- 
sequence, nomme  pour  leurs  plenipotentiaires,  savoir: 

lesquels,  apres  s'etre  communique  leurs  pleins  pouvoirs,  trouves  en 
bonne  et  due  forme,  sont  convenus  des  dispositions  suivantes: 

Article  i 

L'interdiction  est  regie  par  la  loi  nationale  de  la  person  ne  k 
interdire,  sauf  les  derogations  a  cette  regie  contenues  dans  les  articles 
suivants. 

Article  2 

L'interdiction  ne  peut  etre  prononcee  que  par  les  autorites 
competentes  de  I'Etat  auquel  la  personne  a  interdire  appartient  par 
sa  nationalite  et  la  tutelle  sera  organisee  selon  la  loi  de  cet  Etat,  sauf 
les  cas  pr^vus  aux  articles  suivants. 

Article  3 
Si,  dans  un  des  I'2tats   contractants,  un  ressortissant  d'un  autre 
de  ces  Etats  se  trouve  dans  les  conditions  requises  pour  l'interdiction 
d'apres  sa  loi  nationales,  toutes  les  mesures  provisoires  necessaires 


APPENDIX    B  359 


pour  la  protection  de  sa  personne  et  de  ses  biens  pourront  etre  prises 
par  les  autorites  locales. 

Avis  en  sera  donne  au  Gouvernement  de  I'Etat  dont  il  est  ressor- 
tissant. 

Ces  mesures  prendront  fin  des  que  les  autorites  locales  recevront 
des  autorites  nationales  I'avis  que  des  mesures  provisoires  ont  ete 
prises  ou  que  la  situation  de  I'individu  dont  il  s'agit  a  ete  reglee  par 
un  jugement. 

Article  4 

Les  autorites  de  I'Etat,  sur  le  territoire  duquel  un  etrangerdans 
le  cas  d'etre  interdit  aura  sa  residence  habituelle,  informeront  de 

r 

cette  situation,  des  qu'elle  leur  sera  connue,  les  autorites  de  I'Etat 
dont  I'etranger  est  le  ressortissant,  en  communiquant  la  demande  en 
interdiction  dont  elles  seraient  saisies  et  les  mesures  provisoires  qui 
auraient  ete  prises. 

Article  5 

Les  communications  pr^vues  aux  articles  3  ^  4  se  feront  par  la 
voie  diplomatique  a  moins  que  la  communication  directe  ne  soit 
admise  entre  les  autorites  respectives. 

Article  6 
II  sera  sursis  a  toute  mesure  definitive  dans  le  pays  de  la  residence 
habituelle  tant  que  les  autorites  nationales  n'auront  pas  r^pondu  a 
la  communication  prevue  dans  Particle  4.  Si  les  autorites  nationales 
declarent  vouloir  s'abstenir  ou  ne  repondent  pas  dans  le  delai  de  six 
mois,  les  autorites  de  la  residence  habituelle  auront  a  statuer  sur 
I'interdiction  en  tenant  compte  des  obstacles  qui,  d'apres  la  reponse 
des  autorites  nationales,  empecheraient  I'interdiction  dans  le  pays 
d'origine. 

Article  7 
Dans  le  cas  ou  les  autorites  de  la  residence  habituelle  sont  comp^- 
tentes  en  vertu  de  Particle  precedent,  la  demande  en  interdiction  peut 
etre  formee  par  les  personnes  et  pour  les  causes  admises  a  la  fois  par 
la  loi  nationale  et  par  la  loi  de  la  residence  de  I'etranger. 

Article  8 
Lorsque  I'interdiction  a  ete  prononcee  par  les  autorites  de  la 
residence  habituelle,  Padministration  de  la  personne  et  des  biens  de 


36o      CONGRESS   OF   LAWYERS   AND    JURISTS 

I'interdit  sera  organisee  selon  la  loi  locale,  et  les  effets  de  I'interdiction 
seront  rdgis  par  la  meme  loi. 

Si,  n^anmoins,  la  loi  nationale  de  I'interdit  dispose  que  sa  sur- 
veillance sera  confide  de  droit  a  une  personne  determinee,  cette  dispo- 
sition sera  respectee  autant  que  possible. 

Article  9 

L'interdiction,  prononcee  par  les  autoritds  competentes  conforme- 
ment  aux  dispositions  qui  precedent,  produira,  en  ce  qui  con,cerne  la 
capacity  de  I'interdit  et  sa  tutelle,  ses  effets  dans  tous  les  Etats  con- 
tractants  sans  qu'il  soit  besoin  d'un  exequatur. 

Toutefois  les  mesures  de  publicite,  prescrites  par  la  loi  locale 
pour  l'interdiction  prononcee  par  les  autorites  du  pays,  pourront 
etre  declarees  par  elle  egalement  applicables  a  I'interdiction  qui 
aurait  ete  prononcee  par  une  autorite  etrangere,  ou  remplacees  par 
mesures  analogues.  Les  Etats  contractants  se  communiqueront 
reciproquement,  par  I'intermediaire  du  Gouvernement  neerlandais, 
les  dispositions  qu'ils  auraient  prises  a  cet  egard. 

Article  10 

L'existence  d'une  tutelle  etablie  conformement  a  la  article  8 
n'empeche  pas  de  constituer  une  nouvelle  tutelle  conformement  a 
la  loi  nationale. 

11  sera,  le  plus  tot  possible,  donne  avis  de  ce  fait  aux  autoritds  de 
I'Etat  oil  I'interdiction  a  etd  prononcee. 

La  loi  de  cet  Etat  decide  a  quel  moment  cesse  la  tutelle  qui  y 
avait  dte  organisee.  A  partir  de  ce  moment  les  effets  de  I'interdiction 
prononcee  par  les  autorites  seront  regis  par  la  loi  nationale  de  I'in- 
terdit. 

Article  ii 

L'interdiction,  prononcde  par  les  autorites  de  la  residence  habi- 
tuelle,  pourra  etre  levee  par  les  autorites  nationales  conformement  a 
leur  loi. 

Les  autoritds  locales  qui  ont  prononce  I'interdiction  pourront 
egalement  la  lever  pour  tous  les  motifs  prevus  par  la  loi  nationale  ou 
par  la  loi  locale.  La  demande  peut  etre  formee  par  tous  ceux  qui  y 
sent  autorises  par  I'une  ou  par  I'autre  de  ces  lois. 

Les  decisions  qui  levent  l'interdiction  auront  de  plein  droit  leurs 


APPENDIX    B  361 


effets  dans  tous  les   Etats  contractants  sans  qu'il  soit  besoin  d'un 
exequatur. 

Article  12 
Les  dispositions  qui  precedent  recevront  leur  application  sans 
qu'il  y  ait  a  distinguer  entre  les  meubles  et  les  immeubles  de  I'inca- 
pable,  sauf  exception  quant  aux  immeubles  places  par  la  loi  de  leur 
situation  sous  un  regime  fonder  special. 

Article  13 

Les  regies  contenues  dans  la  presente  Convention  sont  communes 
a  I'interdiction  proprement  dite,  a  I'institution  d'une  curatelle,  a  la 
nomination  d'un  conseil  judiciaire,  ainsi  qu'a  toutes  autres  mesures 
analogues  en  tant  qu'elles  entrainement  une  restriction  de  la  capacite. 

Article  14 
La  presente  Convention  ne  s'applique  qu'a  I'interdiction  de  ressor- 

r 

tissants  d'un  des  Etats  contractants  ayant  leur  residence  habituelle 
sur  le  territoire  d'un  de  ces  Etats. 

Toutefois  Particle  3  de  la  presente  Convention  s'applique  a  tous 
les  ressortissants  des  Etats  contractants. 

Article  15 

La  presente  Convention  sera  ratitiee  et  les  ratifications  en  seront 
deposees  a  La  Haye,  des  que  six  des  Hautes  Parties  contractantes 
seront  en  mesure  de  le  faire. 

II  sera  dresse  de  tout  depot  de  ratifications  un  proces-verbal,  dont 
une  copie,  certifiee  conforme,  sera  remise  par  la  voie  diplomatique  a 
chacun  des  Etats  contractants. 

Article  16 

La  presente  Convention  s'applique  de  plein  droit  aux  territories 
europeens  des  Etats  contractants. 

r 

Si  un  Etat  contractant  en  desire  la  mise  un  vigueur  dans  ces  terri- 
toires,  possessions  ou  colonies,  situes  hors  de  I'Europe,  ou  dans  ses  cir- 
conscriptions  consulaires  judiciaires,  il  notifiera  son  intention  a  cet  effet 
par  un  acte,  qui  sera  depose  dans  les  archives  du  Gouvernement  des 
Pays-Bas.  Celui-ci  en  enverra,  par  la  voie  diplomatique,  une  copie, 
certifiee  conforme,  a  chacun  des  Etats  contractants.  La  Convention 
entrera  en  vigueur  dans  les  rapports  entre  les  Etats  qui  repondront 


362      CONGRESS   OF  LAWYERS   AND   JURISTS 

par  une  declaration  affirmative  a  cette  notification  et  les  territoires, 
possessions  ou  colonies,  situds  hors  de  I'Europe,  et  les  circonscriptions 
consulaires  judiciaires,  pour  lesquels  la  notification  aura  ^t^  faite. 
La  declaration  affirmative  sera  depos^e,  de  meme,  dans  les  archives 
du  Gouvernement  des  Pays-Bas,  qui  en  enverra,  par  la  voie  diplo- 
matique, une  copie,  certifiee  conforme,  a  chacun  des  Ktats  contrac- 
tants. 

Article  17 

Les  Etats  representee  a  la  quatrieme  Conference  de  droit  interna- 
tional prive  sont  admis  a  signer  la  prdsente  Convention  jusqu'au 
dej)6t  des  ratifications  pr^vu  par  I'article  15,  alinda  i®''. 

Apres  ce  depot,  ils  seront  toujours  admis  a  y  adherer  purement  et 
simplement.  L'Etat  qui  desire  adherer  notifie  son  intention  par  un 
acte  qui  sera  depose  dans  les  archives  du  Gouvernement  des  Pays- 
Bas.  Celui-ci  en  enverra,  par  la  voie  diplomatique,  une  copie,  cer- 
tifiee conforme,  a  chacun  des  Etats  contractants. 

Article  18 

La  presente  Convention  entrera  en  vigueur  le  soixantieme  jour 
a  partir  depot  des  ratifications  prevu  par  I'article  15,  alinea  i®''. 

Dans  le  cas  de  I'article  16,  alinea  2,  elle  entrera  en  vigueur  quatre 
mois  apres  la  date  de  la  declaration  affirmative  et,  dans  le  cas  de 
I'article  17,  alinea  2,  le  soixantieme  jour  apres  la  date  de  la  notifica- 
tion des  adhesions. 

II  est  entendu  que  les  notifications  prevues  par  I'article  16,  alinea 
2,  ne  pourront  avoir  lieu  qu'apres  que  la  presente  Convention  aura 
ete  mise  en  vigueur  conformement  a  I'aUnea  2  du  present  article. 

Article  19 

La  presente  Convention  aura  une  duree  de  5  ans  a  partir  de  la 
date  indiquee  dans  I'article  18,  alinea  i*"". 

Ce  terme  commencera  a  courir  de  cette  date,  meme  pour  les  Etats 
qui  auront  adhere  posterieurement  et  aussi  en  ce  qui  concerne  les 
declarations  affirmatives  faites  en  vertu  de  I'article  16,  alinea  2. 

La  Convention  sera  renouvelee  tacitement  de  cinq  ans,  en  cinq 
ans,  sauf  denonciation. 

La  denonciation  devra  etre  notifiee,  au  moins  six  mois  avant  I'ex- 
piration  du  terme  vise  aux  alineas  2  et  3,  au  Gouvernement  des  Pays- 
Bas,  qui  en  donnera  connaissance  k  tous  les  autres  Etats. 


APPENDIX    B  363 


La  denonciation  peut  ne  s'appliquer  qu'aux  territoires,  possessions 
ou  colonies,  situes  liors  de  I'Europe,  ou  aussi  aux  circonscriptions  con- 
sulaires  judiciaires,  compris  dans  une  notification  faite  en  vertu  de 
Particle  16,  alinea  2. 

La  denonciation  ne  produira  son  effet  qu'a  I'egard  de  I'Etat  qui 
I'aura  notifiee.  La  Convention  restera  executoire  pour  les  autres 
Etats  contractants. 

[Fait  a  La  Haye  le  7  juin  1904.] 


C.     THE  INTERNATIONAL  LAW  OF  BANKRUPTCY: 


V.  PRO  JET  RELATIF  A  LA  FAILLITE.' 

Article  i 

La  declaration  de  faillite  d'un  commerfant,  prononcee  dans  I'un 
des  Etats  contractants  par  I'autorite  competente  aux  termes  de  Par- 
ticle 2,  sera  reconnue  et  produira  ses  effets  dans  les  autres  Etats  con- 
tractants de  la  maniere  et  dans  la  mesure  determinees  par  les  articles 
suivants. 

Article  2 

L'autorite  seule  competente  pour  prononcer  la  declaration  de 
faillite  est  celle  de  pays  dans  lequel  le  debiteur  a  son  principal  etab- 
lissement  commercial. 

Pour  une  societe,  l'autorite  seule  competente  est  celle  du  pays  o\x 
elle  a  son  siege  social,  a  la  condition  qu'il  ne  soit  ni  frauduleux  ni 
fictif. 

Article  3 
Lorsque  la  faillite  declaree  dans  Pun  des  Etats  contractants  com- 
prend  une  succursale  ou  un  etablissement  dans  un  autre,  les  formal- 
ites  de  publicite  exigees  par  la  legislation  de  ce  dernier  Etat  sont,  sans 
prejudice  des  mesures  conservatoires  ou  d'administration  prevues  a 
Particle  5,  remplies  a  la  diligence  du  syndic  ou  du  curateur  au  lieu 
de  cette  succursale  ou  de  cet  etablissement. 

'Ce  texte  ne  doit  pas  etre  considere  comme  projet  d'une  convention  gener- 
ale,  il  pourra  seulement  servir  de  base  a  des  conventions  a  conclure  ^ventuelle- 
ment  d'Etat  a  Etat. 


364     CONGRESS   OF   LAWYERS  AND   JURISTS 

Article  4 

La  nomination  et  les  pouvoirs  des  administrateurs  de  la  faillite, 
ies  formes  a  suivre  dans  la  procedure  de  faillite,  I'admission  des 
creanciers,  la  formation  du  concordat  et  la  distribution  de  I'actif 
entre  les  creanciers,  sont  regies  par  loi  du  lieu  ou  la  faillite  a  et^ 
declar^e. 

Article  5 

Les  creanciers  Strangers  qui  sont  les  ressortissants  d'un  des  Etats 
contractants  sont  entierement  assimiles  aux  creanciers  nationaux. 

Article  6 

Sans  qu'un  exequatur  prealable  soit  necessaire,  le  syndic,  cura- 
teur  ou  autre  administrateur  de  la  faillite,  dument  nomme  conform^- 
ment  a  la  loi  de  I'Etat  ou  la  faillite  a  ete  declaree,  pent,  dans  chaque 
Etat  contractant,  prendre  toutes  mesures  conservatoires  ou  d'admin- 
istration  concernant  la  faillite.  11  peut  egalement  tester  en  justice, 
soit  comme  demandeur,  soit  comme  defendeur,  en  ciualite  de  repre- 
sentant  du  failli  ou  de  la  masse. 

Mais  il  ne  procedera  a  des  actes  d'execution  qu'autant  que  la  deci- 
sion en  vertu  de  laquelle  il  agira  aura  ete  revetue  de  I'exdquatur  con- 
formement  a  la  loi  de  I'Etat  ou  ces  actes  doivent  avoir  lieu. 

Article  7 

L'exequatur  sera  accorde,  si  le  requerant  etablit: 

1.  que  la  faillite  a  ete  declaree  par  I'autorite  competent^  d'apres 
Particle  2; 

2.  que  la  decision  est  executoire  dans  I'Etat  011  elle  a  ete  rendue; 

3.  que  I'expedition  qui  en  est  produite  reunit,  d'apres  la  loi  de 
cet  Etat,  les  conditions  necessaires  a  son  authenticite; 

4.  que  le  debiteur  a  ete  dument  appele,  represents  ou  declare 
defaillant. 

Article  8 

La  procedure  d'exequatur  est  reglee  par  la  loi  de  I'Etat  ou  la 
demande  est  formSe. 

L'exequatur  peut  etre  demande,  non  seulement  par  I'administra- 
teur  de  la  faillite,  mais  encore  par  toute  personne  ayant  qualite  a  cet 
effet  en  vertu  de  la  loi  du  pays  ou  la  faillite  a  €\€  declaree. 


APPENDIX    B  365 


Article  9 

Le  concordat  posterieur  a  la  declaration  de  la  faillite  produira 
de  plein  droit  ses  effets  dans  tous  les  Etats  contractants,  s'il  a  ete 
accorde  par  les  creanciers  at  homologue  par  I'autorite  competente, 
avec  les  formalites  prescrites  par  la  loi  de  I'Etat  oia  la  faillite  a  ete 
ouverte. 

Article  10 

La  presente  Convention  ne  s'oppose  pas  a  ce  que  les  Etats  con- 
tractants appliquent  les  mesures  edictees  par  leurs  legislations  en 
vue  d'assurer  la  continuation  d'un  service  public  dont  est  chargee 
une  entreprise  en  faillite. 

EUe  ne  s'applique  pas  non  plus  aux  entreprises  a  propos  desquelles 
des  mesures  legislatives  ou  reglementaires  speciales  sont  prises  dans 
I'interet  des  creanciers. 

[Fait  a  La  Have  le  7  juin  1904.] 

THE  REVISORY   PROJECT    OF   1904 


I.  COMMUNICATION  D'ACTES  JUDICIAIRES  ET  EXTRA- 

JUDICIAIRES 

Article  i 

En  matiere  civile  ou  commerciale,  les  significations  d'actes  a  des- 
tination de  personnes  se  trouvant  a  I'etranger  se  feront,  dans  les 
Etats  contractants,  sur  une  demande  du  consul  de  I'Etat  requerant 
addressee  a  I'autorite  qui  sera  designee  par  I'Etat  requis.  La  de- 
mande contenant  I'indication  de  I'autorite  de  qui  emane  I'acte  trans- 
mis,  le  nom  et  la  qualite  des  parties,  I'addresse  du  destinataire,  la 
nature  de  I'acte  dont  il  s'agit,  doit  etre  redigee  dans  la  langue  de 
I'autorite  requise.  Cette  autorite  enverra  au  consul  la  piece  prouvant 
la  signification  ou  indiquant  le  fait  qui  I'a  empechee. 

Toutes  les  difficultes  qui  s'eleveraient  a  I'occasion  de  la  demande 
du  consul  seront  reglees  par  la  voie  diplomatique. 

Chaque  Etat  contractant  peut  declarer,  par  une  communication 
addressee  aux  autres  Etats  contractants,  qu'il  entend  que  la  de- 
mande de  signification  a  faire  sur  son  territoire,  contenant  les  mentions 
indiquees  a  I'alinea  i®'',  lui  soit  addressee  par  la  voie  diplomatique. 

Les  dispositions  qui  precedent  ne  s'opposent  pas  a  ce  que  deux 


366     CONGRESS   OF  LAWYERS  AND   JURISTS 

Etats  contractants    s'entendent    pour  admettre   la   communication 
directe  entre  leurs  autorites  respectives. 

Article  2 
La  signification  se  fera  par  les  soins  de  I'autorit^  compdtente  de 
I'Etat  requis.     Cette   autorit^,  sauf  les  cas  pr^vus  dans  I'article  3, 
pourra  se  borner  a  effectuer  la  signification  par  la  remise  de  I'acte  au 
destinataire  qui  I'accepte  volontairement. 

Article  3 

Si  I'acte  a  signifier  est  redige,  soit  dans  la  langue  de  I'autorite 
requise,  soit  dans  la  langue  convenue  entre  les  deux  Etats  interesses, 
ou  s'il  est  accompagne  d'une  traduction  dans  I'une  de  ces  langues, 
I'autorite  requise,  au  cas  ou  le  desir  lui  en  serait  exprim^  dans  la 
demande,  fera  signifier  I'acte  dans  la  forme  prescrite  par  sa  legisla- 
tion int^rieure  pour  I'execution  de  significations  analogues,  ou  dans 
une  forme  spdciale,  pourvu  qu'elle  ne  soit  pas  contraire  a  cette  legis- 
lation. Si  un  pareil  desir  n'est  pas  exprime,  I'autorite  requise 
cherchera  d'abord  a  efi"ectuer  la  remise  dans  les  termes  de  I'article  2. 

Sauf  entente  contraire,  la  traduction  prevue  dans  I'alinea  prece- 
dent sera  certifiee  conforme  par  I'agent  diplomatique  ou  consulaire  de 
I'Etat  requerant  ou  par  un  traducteur  assermente  de  I'Etat  requis. 

Article  4 

L'execution  de  la  signification  prevue  par  les  articles  1,  2  et  3  ne 
pourra  etre  refusee  que  si  I'Etat,  sur  le  territoire  duquel  elle  devrait 
etre  faite,  la  juge  de  nature  a  porter  atteinte  a  sa  souverainete  ou  a  sa 
security. 

Article  5 

La  preuve  de  la  signification  se  fera  au  moyen,  soit  d'un  rece- 
pisse  date  et  legalist  du  destinataire,  soit  d'une  attestation  de  I'auto- 
rite de  I'Etat  requis,  constatant  le  fait,  la  forme  et  la  datede  la  signifi- 
cation. 

Si  I'acte  a  signifier  a  ete  transmis  en  double  exemplaire,  le  recepisse 
ou  I'attestation  doit  se  trouver  sur  I'un  des  doul)les  ou  y  etre  annexe. 

Article  6 
Les  dispositions  des  articles  qui  precedent  ne  s'opposent  pas: 
T.  ala  faculte  d'adresser  directement  par  la  voiede  la  poste  des 
actes  aux  interesses  se  trouvant  a  I'etranger; 


APPENDIX    B  367 


2.  a  la  faculty  pour  les  interesses  de  faire  faire  des  significations 
directement  par  les  soins  des  ofiiciers  ministeriels  ou  des  fonction- 
naires  comp^tents  du  pays  de  destination; 

3.  a  la  faculte  pour  chaque  Etat  de  faire  faire  directement,  par  les 
soins  de  ses  agents  diplomatiques  ou  consulaires,  les  significations 
destinees  aux  personnes  se  trouvant  a  I'etranger. 

Dans  chacun  de  ces  cas,  la  faculte  prevue  n'existe  que  si  des  con- 
ventions  intervenues  entre  les  Etats  interesses  Tadmcttent  ou  si,  a 

r 

d^faut  de  conventions,  I'Etat  sur  le  territoire  duquel  la  signification 
doit  etre  faite  ne  s'y  oppose  pas.  Cet  Etat  ne  pourra  s'y  opposer 
lorsque,  dans  le  cas  de  I'alinea  i®"",  numero  3,  I'actedoit  etre  signifie 
sans  contrainte  a  un  ressortissant  de  I'Etat  requerant. 

Article  7 

Les  significations  ne  pourront  donner  lieu  au  remboursement  de 
taxe  ou  de  frais  de  quelque  nature  que  ce  soit. 

Toutefois,  sauf  entente  contraire,  I'Etat  requis  aura  le  droit 
d'exiger  de  I'Etat  requerant  le  remboursement  des  frais  occasionnes 
par  I'intervention  d'un  officier  ministeriel  ou  par  I'emploi  d'une 
forme  speciale  dans  les  cas  de  Particle  3. 

II.  COMMISSIONS  ROGATOIRES 

Article  8 

En  matiere  civile  ou  commerciale,  I'autorite  judiciaire  d'un  Etat 
contractant  pourra,  conformement  aux  dispositions  de  sa  legislation, 
s'adresser  par  commission  rogatoire  a  I'autorite  competente  d'un 
autre  Etat  contractant  pour  lui  demander  de  faire,  dans  son  ressort, 
soit  un  acte  d'instruction,  soit  d'autres  actes  judiciaires. 

Article  9 

Les  commissions  rogatoires  seront  transmises  par  le  consul  de 
I'Etat  requerant  a  I'autorite  qui  sera  designee  par  I'Etat  requis. 
Cette  autorite  enverra  au  consul  la  piece  constatanl  I'ex^cution  de  la 
commission  rogatoire  ou  indiquant  le  fait  qui  en  a  empeche  I'execution. 

Toutes  les  difficultes  qui  s'eleveraient  a  I'occasion  de  cette  trans- 
mission seront  reglees  par  la  voie  diplomatique. 

Chaque  Etat  contractant  peut  declarer,  par  une  communication 
addressee  aux  autres  Etats  contractants,  qu'il  entend  que  les  com- 


368     CONGRESS   OF   LAWYERS   AND   JURISTS 

missions  rogatoires  a  executer  sur  son  territoire  lui  soient  transmises 
par  la  voie  diplomatique. 

Les  dispositions  qui  precedent  ne  s'opposent  pas  a  ce  que  deux 
Etats  contractants  s'entendent  pour  admettre  la  transmission  directe 
des  commissions  rogatoires  entre  leurs  autorites  respectives. 

Article  io 

Sauf  entente  contraire,  la  commission  rogatoire,  doit  etre  redig^e 
soit  dans  la  langue  de  I'autorite  requise,  soit  dans  la  langue  convenue 
entre  les  deux  Etats  interesses,  ou  bien  elle  doit  etre  accompagnee 
d'une  traduction  faite  dans  une  de  ces  langues  et  certifiee  conforme 
par  un  agent  diplomatique  ou  consulaire  de  I'Etat  requ^rant  ou  par 
une  traducteur  assermente  de  I'Etat  requis. 

Article  it 

L'autorite  judiciaire  a  laquelle  la  commission  rogatoire  est  ad- 
dressee sera  obligee  d'y  satisfaire  en  usant  des  memes  moyens  de  con- 
trainte  que  pour  I'execution  d'une  commission  des  autorites  de  I'Etat 
requis  ou  d'une  demande  formee  a  cet  effet  par  une  partie  interessee. 
Ces  moyens  de  contrainte  ne  sont  pas  n^cessairement  employes  s'il 
s'agit  de  la  comparution  de  parties  en  cause. 

L'autorite  requerante  sera,  si  elle  le  demande,  informee  de  la  date 
et  du  lieu  ou  il  sera  procede  a  la  mesure  soUicitee,  afin  que  la  partie 

r 

interessee  soit  en  Etat  d'y  assister. 

L'execution  de  la  commission  rogatoire  ne  pourra  etre  refusee 
que: 

1.  si  I'authenticite  du  document  n'est  pas  etablie; 

2.  si,  dans  I'Etat  requis,  l'execution  de  la  commission  rogatoire  ne 
rentre  pas  dans  les  attributions  du  pouvoir  judiciaire; 

3.  si  I'Etat  sur  le  territoire  duquel  l'execution  devrait  avoir  lieu 
la  juge  de  nature  a  porter  atteinte  a  sa  souverainete  ou  a  sa  securite. 

Article  12 

En  cas  d'incomp^tence  de  I'autorite  requise,  la  commission  roga- 
toire sera  transmise  d'office  a  l'autorite  judiciaire  competente  du 
meme  Etat,  suivant  les  regies  etablies  par  la  legislation  de  celui-ci. 

Article  13 

Dans  tous  les  cas  ou  la  commission  rogatoire  n'est  pas  exdcutee 
par  l'autorite  requise,  celle-ci  en  informera  immediatement  l'autorite 


APPENDIX    B  369 


requerante,  en  indiquant,  dans  le  cas  de  Particle  11,  les  raisins  pour 
lesquelles  I'execution  de  la  commission  rogatoire  a  ete  refusee  et, 
dans  le  cas  de  Particle  12,  Pautorite  a  laquelle  la  commission  est 
transmise. 

Article  14 

L'autorite  judiciaire  qui  precede  a  I'execution  d'une  commission 
rogatoire  appliquera  les  lois  de  son  pays,  en  ce  qui]concerne  les  formes 
a  suivre. 

Toutefois,  il  sera  defere  a  la  demande  de  Pautorite  requerante, 
tendant  a  ce  qu'il  soit  procede  suivant  une  forme  speciale,  pourvu  que 
cette  forme  ne  soit  pas  contraire  a  la  legislation  deJPEtat  requis. 

Article  15 

Les  dispositions  des  articles  qui  precedent  n'excluent  pas  la  fa- 
culte  pour  chaque  E tat def aire executerdirectement  parses  agents  dip- 
lomatiques  ou  consulaires  les  commissions  rogatoires,  si  des  conven- 
tions  intervenues  entre  les  Etats  interesses  Padmettent  ou  si  PEtat 
sur  le  territoire  duquel  la  commission  rogatoire  doit  etre  executee  ne 
s'y  oppose  pas. 

Article  16 

L'execution  des  commissions  rogatoires  ne  pourra  donner  lieu  au 
remboursement  de  taxes  ou  de  frais  de  quelque  nature  que  ce  soit. 

Toutefois,  sauf  entente  contraire,  PEtat  requis  aura  le  droit  d'exiger 
de  PEtat  requerant  le  remboursement  des  indemnites  payees  aux 
temoins  ou  aux  experts,  ainsi  que  des  frais  occasionnes  par  Pinter- 
vention  d'un  officier  ministeriel,  rendue  necessaire  parce  que  les 
temoins  n'ont  pas  comparu  volontairement,  ou  des  frais  resultant  de 
Papplication  eventuelle  de  Particle  14,  alinea  2. 


III.  CAUTION  JUDICATUM  SOLVI 

Article  17 

Aucune  caution  ni  depot,  sous  quelque  denomination  que  ce  soit, 
ne  pent  etre  impose,  a  raison  soit  de  leur  qualite  d'etrangers,  soit  du 
defaut  de  domicile  ou  de  residence  dans  le  pays,  aux  nationaux  d'un 
des  Etats  contractants,  ayant  leur  domicile  dans  Pun  de  ces  Etats, 
qui  seront  demandeurs  ou  intervenants  devant  les  tribunaux  d'un 
autre  de  ces  Etats. 


370     CONGRESS   OF  LAWYERS  AND   JURISTS 

La  meme  regie  s'applique  au  versement  qui  serait  exige  des  de- 
mandeurs  ou  intervenants  pour  garantir  les  frais  judiciaires. 

Les  conventions  par  lesquelles  des  Etats  contractants  auraient 
stipule  pour  leurs  ressortissants  la  dispense  de  la  caution  judicatum 
solvi  ou  du  versement  des  frais  judiciaires  sans  condition  de  domicile 
continueront  k  s'appliquer. 

Article  i8 

Les  condamnations  aux  frais  et  ddpens  du  proces,  prononcees 
dans  un  des  Etats  contractants  contre  le  demandeur  ou  I'intervenant 
dispenses  de  la  caution,  du  d^pot  ou  du  versement  en  vertu  soil  de 
Particle  17,  alin^as  i  et  2,  soit  de  la  loi  de  I'Etat  oia  Paction  est  in- 
tentee,  seront,  sur  une  demande  faite  par  la  voie  diplomatique, 
rendues  gratuitement  ex^cutoires  par  I'autoritd  comp^tente  dans 
chacun  des  autres  Etats  contractants. 

La  meme  regie  s'applique  aux  decisions  judiciaires  par  lesquelles 
le  montant  des  frais  du  proces  est  fixe  ulterieurement. 

Les  dispositions  qui  precedent  ne  s'opposent  pas  a  ce  que  deux 
Etats  contractants  s'entendent  pour  permettre  que  la  demande 
d'exequatur  soit  aussi  faite  directement  par  la  partie  int^ress^e. 

Article  19 

Les  decisions  relatives  aux  frais  et  depens  seront  declar^es  execu- 
toires  sans  entendre  les  parties,  mais  sauf  recours  ultdrieur  de  la 
partie  condamnee,  conformement  a  la  legislation  du  pays  ou  I'execu- 
tion  est  poursuivie. 

L'autorite  comp^tente  pour  statucr  sur  la  demande  d'exequatur 
se  bornera  a  examiner: 

1.  si,  d'apres  la  loi  du  pays  oil  la  condamnation  a  6t6  prononcde, 
I'expddition  de  la  decision  rdunit  les  conditions  necessaries  k  son 
authenticity; 

2.  si,  d'apres  la  meme  loi,  la  decision  est  passee  en  force  de  chose 
jugee; 

3.  si  le  dispositif  de  la  decision  est  r^dig^,  soit  dans  la  langue  de 
l'autorite  requise,  soit  dans  la  langue  convenue  entre  les  deux  Etats 
int^resses,  ou  bien  s'il  est  accompagne  d'une  traduction,  faite  dans 
une  des  langues  et,  sauf  entente  contraire,  certifi^e  conforme  par  un 
agent  diplomatique  ou  consulaire  de  I'Etat  requdrant  ou  par  un  tra- 
ducteur  asserment^  de  I'Etat  requis. 


APPENDIX    B  371 


Pour  satisfaire  aux  conditions  prescrites  par  I'alinea  2,  numeros 
I  et  2,  il  sufl&ra  d'une  declaration  de  I'autorite  competente  de  I'Etat 
requdrant  constatant  que  la  decision  est  passee  en  force  de  chose 
jugee.  La  competence  de  cette  autorite  sera,  sauf  entente  contraire, 
certifiee  par  le  plus  haut  foncionnaire  prepose  a  I'administration  de  la 
justice  dans  I'Etat  requerant.  La  declaration  et  le  certificat  dont  il 
vient  d'etre  parle  doivent  etre  rediges  ou  traduits  conformement  a  la 
regie  contenue  dans  I'alinea  2,  numero  3. 

IV.  ASSISTANCE  JUDICIAIRE  GRATUITE 

Article  20 

Les  ressortissants  de  chacun  des  Etats  contractants  seront  admis 
dans  tous  les  autres  Etats  contractants  au  benefice  de  I'assistance 
judiciaire  gratuite,  comme  les  nationaux  eux-memes,  en  se  confor- 
mant a  la  legislation  de  I'Etat  ou  I'assistance  judiciaire  gratuite  est 
reclamee. 

Article  21 
Dans  tous  les  cas,  le  certificat  ou  la  declaration  d'indigence  doit 
etre  delivre  ou  re^ue  par  les  autoriti^s  de  la  residence  habituelle  de 
r^tranger,  ou,  a  defaut  de  celle-ci,  par  les  autorites  de  sa  residence 
actuelle.  Dans  le  cas  ou  ces  demieres  autorites  n'appartiendraient 
pas  a  un  Etat  contractant  et  ne  recevraient  pasou  ne  d^livreraient  pas 
des  certificats  ou  des  declarations  de  cette  nature,  il  suflfira  d'un  cer- 
tificat ou  d'une  declaration,  delivre  ou  refue  par  un  agent  diploma- 
tique ou  consulaire  du  pays  auquel  I'etranger  appartient. 

Si  le  requerant  ne  reside  pas  dans  le  paysoulademandeest  formee, 
le  certificat  ou  la  declaration  d'indigence  sera  legalise  gratuitement 
par  un  agent  diplomatique  ou  consulaire  du  pays  oil  le  document 
doit  etre  produit. 

Article  22 

L'autorite  competente  pour  delivrer  le  certificat  ou  recevoir  la 
declaration  d'indigence  pourra  prendre  des  renseignements  sur  la 
situation  de  fortune  du  requdrant  aupres  des  autorites  des  autres 
Etats  contractants. 

L'autorite  chargee  de  statuer  sur  la  demande  d'assistance  judi- 
ciaire gratuite  conserve,  dans  les  limites  de  ses  attributions,  le  droit  de 
controler  les  certificats,  declarations  et  renseignements  qui  lui  sent 
fournis. 


372      CONGRESS   OF   LAWYERS  AND   JURISTS 

Article  23 

Si  le  benefice  de  I'assistance  judiciaire  gratuite  a  dte  accords  au 
ressortissant  d'un  des  Elats  contractants,  les  significations  relatives 
au  meme  proems  qui  seraient  a  faire  dans  un  autre  de  ces  Etats  ne 
pourront  donner  lieu  qu'au  remboursement  par  I'Etat  requ^rant 
a  I'Etal  requis  des  frais  occasionn^s  par  I'emploi  d'une  forme  sp^ciale 
en  vertu  de  Particle  x. 

Dans  le  meme  cas,  I'execution  de  commissions  rogatoires  ne  don- 

r  t 

nera  lieu  qu'au  remboursement  yoar  I'Etat  requerant  a  l'P2tat  requis 
des  indemnites  payees  aux  tdmoins  ou  aux  experts,  ainsi  que  des 
frais  necessites  par  I'application  dventuelle  de  Particle  14,  alinda  2. 

V.  CONTRAINTE  PAR  CORPS 
Article  24 

La  contrainte  par  corps,  soit  comme  moyen  d'ex^cution,  soil 
comme  mesure  simplement  conservatoire,  ne  pourra  pas,  en  matiere 
civile  ou  commerciale,  etre  appliquee  aux  etrangers  appartenant  a 
un  des  Etats  contractants  dans  le  cas  oia  elle  ne  serait  pas  applicable 
aux  ressortissants  du  pays.  Un  fait  qui  peut  etre  invoqu^  par  un 
ressortissant  domicilie  dans  le  pays,  pour  obtenir  la  lev^e  de  la  con- 
trainte par  corps,  doit  produire  le  meme  effet  au  profit  du  ressortissant 
d'un  Etat  contractant,  meme  si  ce  fait  s'est  produit  a  Petranger. 

VL  DISPOSITIONS  FINALES 

Article  25 

La  presente  Convention  sera  ratifide  et  les  ratifications  en  seront 
deposees  a  La  Haye,  des  que  six  des  Hautes  Parties  Contractantes 
seront  en  mesure  de  le  faire. 

II  sera  dresse  de  tout  depot  de  ratifications  un  proces-verbal,  dont 
una  copie,  certifiee  conforme,  sera  remise  par  la  voie  di[)lomatique  a 

r 

chacun  des  Etats  contractants. 

Article  26 
La  presente  Convention  s'applique  de  plein  droit  aux  territoires 

r 

europdens  des  Etats  contractants. 

Si  un  Etat  contractant  en  desire  la  mise  en  vigueur  dans  ses  terri- 
toires, possessions  ou  colonies,  situds  hors  de  PEurope,  ou  dans  ses 


APPENDIX    B  373 


circonscriptions  consulaires  judiciaires,  il  notifiera  son  intention  a 
cet  effet  par  un  acte,  qui  sera  depose  dans  les  archives  du  Gouverne- 
ment  des  Pays-Bas.  Celui-ci  en  enverra,  par  la  voie  diplomatique, 
une  copie,  certifiee  conforme,  a  chacun  des  Etats  contractants.  La 
Convention  entrera  en  vigueur  dans  les  rapports  entre  les  Etats  qui 
repondront  par  une  declaration  affirmative  a  cette  notification  et  les 
territoires,  possessions  ou  colonies,  situes  hors  de  I'Europe,  et  les  cir- 
conscriptions consulaires  judiciaires,  pour  lesquels  la  notification 
aura  ete  faite.  La  declaration  affirmative  sera  deposee,  de  meme, 
dans  les  archives  du  Gouvernement  des  Pays-Bas,  qui  en  enverra, 
par  la  voie  diplomatique,  une  copie,  certifiee  conforme,  a  chacun  des 

r 

Etats  contractants. 

Article  27 

Les  Etats  representee  a  la  quatrieme  Conference  de  droit  interna- 
tional prive  sont  admis  a  signer  la  presente  Convention  jusqu'au 
depot  des  ratifications  prevu  par  Particle  25,  alinea  i®''. 

Apres  ce  depot,  ils  seront  toujours  admis  a  y  adherer  purement  et 
simplement.  L'Etatqui  desire  adherer  notifte  son  intention  par  un 
acte  qui  sera  depose  dans  les  archives  du  Gouvernement  des  Pays- 
Bas.     Celui-ci  en  enverra,  par  la  voie  diplomatique,  une  copie,  cer- 

r 

tifiee  conforme,  a  chacun  des  Etats  contractants. 

Article  28 

La  presente  Convention  remplacera  la  Convention  de  droit  inter- 
national prive  du  14  novembre  1896,  et  le  Protocole  Additionnel  du 
22  mai  1897. 

EUe  entrera  en  vigueur  le  soixantieme  jour  a  partir  de  la  date  ou 
tous  les  Etats  signataires  ou  adherents  de  la  Convention  du  14  no- 
vembre 1896,  auront  depose  leurs  ratifications  de  la  presente  Con- 
vention, et  au  plus  tard  le  27  avril  1909. 

Dans  le  cas  de  Particle  26,  alinea  2,  elle  entrera  en  vigueur  quatre 
mois  apres  la  date  de  la  declaration  affirmative  et,  dans  le  cas  de 
Particle  27,  ahnea  2,  le  soixantieme  jour  apres  la  date  de  la  notifica- 
tion des  adhesions. 

II  est  entendu  que  les  notifications  pr^vues  par  Particle  26,  alinea 
2,  ne  pourront  avoir  lieu  qu'apres  que  la  presente  Convention  aura 
ete  mise  en  vigueur  conformement  a  Palinea  2  du  present  article. 


374     CONGRESS   OF  LAWYERS  AND   JURISTS 

Article  29 

La  presente  Convention  aurauneduree  de  5  ans  a  partir  de  la  date 
indiquee  dans  Particle  28,  alinea  2,  pour  sa  mise  en  vigueur. 

Ce  terme  commencera  a  courir  de  cette  dale,  meme  pour  les  Etats 
qui  auront  fait  le  d^pot  apres  cette  date  au  qui  auront  adhere  posteri- 
eurement  et  aussi  en  ce  qui  concerne  les  declarations  affirmatives 
faites  en  vertu  de  I'article  26,  alinea  2. 

La  Convention  sera  renouvel^e  tacitement  de  cinq  ans  en  cinq 
ans,  sauf  ddnonciation. 

La  d^nonciation  devra  etre  notifiee,  au  moins  six  mois  avant 
I'expiration  du  terme  vis^  aux  alin^as  2  et  3,  au  Gouvernement  des 
Pays-Bas,  qui  en  donnera  connaissance  a  tous  les  autres  Etats. 

La  denonciation  peut  ne  s'appliquer  qu'aux  territoires,  possessions 
ou  colonies,  situds  hors  de  I'Europe,  ou  aussi  aux  conscriptions  con- 
sulaires  judiciaires,  compris  dans  une  notification  faite  en  vertu  de 
I'article  26,  alinea  2. 

La  denonciation  ne  produira  son  efifet  qu'a  I'egard  de  I'Etat  qui 
I'aura  notifiee.  La  Convention  restera  executoire  pour  les  autres 
Etats  contractants. 

[Fait  a  La  Haye,  le  7  juin  1904.] 


THE   HAGUE  CONFERENCES    ON    PRIVATE  INTERNA- 
TIONAL  LAW  (continued) 

BIBLIOGRAPHY 

[The  following  partial  bibliography  of  what  has  been  printed  in 
reference  to  The  Hague  Conferences  for  regulating  different  matters 
of  private  international  law  has  been  prepared  by  Judge  Baldwin.] 

1.  Ades  de  la  Conference  de  La  Haye,  char  gee  de  reglementer 
Diverses  Matieres  de  Droit  International  Prive.     La  Haye,  1903. 

2.  Actes  de  la  Deuxieme  Conference  de  la  Haye  pour  le  Droit  In- 
ternational Prive.     La  Haye,  1894. 

3.  Actes  de  la  Troisieme  Conference  de  La  Haye  pour  le  Droit  In- 
ternational Prive.     La  Haye,  1900. 

Martens,  Recueil  de  Traites,  xix,  424;  xxi,  113;  xxiii,  398;  xxv, 
217. 

Supplement  General  au  Droit  International,  etc.,  pp.  97-114. 
Paris,  1896.  By  Dr.  Charles  Calvo,  Honorary-  Member  of  the 
Institute  of  International  Law,  etc.,  etc. 

La  Conference  de  La  Haye  relative  au  Droit  International  Prive. 
By  Professor  Laine. 

Journal  de  Droit  International  Prive,  1895,  No.  v,  vi,  465;  vii-x, 
734;  1904,  No.  V,  vi,  746,  etc. 

Le  Droit  International  Prive  et  la  Conference  de  La  Haye.  By 
Professor  L.  Renault,  LL.D.,  Paris,  1894. 

Les  Conventions  deLa  Haye  [/Sp6  et  zpo2]  sur  le  Droit  Interna- 
tional Prive.     By  the  same,  Paris,  1903. 

La  Conference  de  Droit  International  Prive  de  La  Haye.  By 
Professor  Villa  Urrutia. 

Revue  d'Histoire  Diplomatique,  No.  11,  1894. 

La  Conference  de  Droit  International  Prive.     By  Dr.  LeGrand. 

Seances  et  travaux  de  VAcademie  des  Sciences  Morales  et  Poli- 
tiques  (Institut  de  France)  Compte  rendu,  etc.,  1894.  Premier 
Semestre,  241. 

Apuntes  sabre  la  Confer  encia  celebrada  en  El  Hay  a.  Por  el 
Marques  de  Herrera. 

375 


376      CONGRESS   OF   LAWYERS  AND   JURISTS 

Boletin  ojicial  del  Ministerio  de  Estado.      No.  2,  Febr.  1894,  197. 

La  segnnda  Conjerencia  de  la  Haya  sobre  el  Derecho  interna- 
cional  privado.     By  the  same. 

Revisla  contempordnea,  May,  1895. 

La  Conjerencia  de  El  Haya.     For  S.  de  Eustamante. 

Revista  del  Foro,  Nums.  20-24,  del  ano  40.     Havana,  1894. 

Le  Manage  en  Droit  International  Prive  et  la  Conference  de  La 
Haye.     By  Dr.  Guillaume.     Brussels,  1894. 

La  Conference  de  La  Haye,  on  Codification  du  Droit  international. 
Par  Professeur  Adil  Bey. 

Bibliotheqne  de  Droit.     Constantinople,  1895. 

De  Iweede  Conferentie  voor  het  Internationale  Privaatrecht.  By 
Dr.  J.  B.  Breukelman. 

Themis,  fasc.  55,  Num.  4,  1895. 

Der  ersie  europdische  Staaten  congress  liber  international  en  Pri- 
vatrechts.  von  Dr.  Jur.  F.  Meili,  O,  O,  Professor  des  internationalen 
Privatrechts  an  der  Universitat,  Zurich. 

Allegemeine  Osterreichische  Gerichtszeitung,  No.  21,  1894. 

Das  Internationale  Privatrecht  und  die  Staaten  Konferenzen  im 
Haag,  Zurich,  1900.     By  the  same. 

Der  Gegenstand  und  der  Frag  Weite  der  vier  europdischen  Staats 
Konferenzen  iiber  internationales  Privatrecht.     By  the  same. 

Mitteiliingen  der  Lnternationalen  Vereinigung  fur  vergleichende 
Rechtswissenschaft  und  Volkwirtsschaftslehre,  No.  24,  Berlin,  Jan- 
uary, 1905. 

Zweiter  inter nationaler  Kongress  fUr  inter nationaler  Privatrecht 
im  Haag.     By  Dr.  Cahn. 

Zeitschrift  fur  internationales  P rival-  und  Strafrecht,  1895,  i. 

II  diritto  internazionale  privato  e  la  Conferenza  diplomatica  del 
VAja.  By  Dr.  Augusto  Pierantoni,  Professor  of  International 
Law  at  the  University  of  Rome. 

La  Rassegna  agraria,  industriale,  commerciale,  letteraria,  politico, 
artistica,  1895. 

Le  Mariage  en  Droit  International  Prive  et  la  Conference  de  La 
Haye.  Par  Dr.  Edmund  Marchal.  Secretaire  de  I'Academie 
royale  des  Sciences,  des  Lettres  et  Sciences  Societ^s  et  Politiques,  et 
des  Beaux-arts  de  Belgique. 

Bulletin  de  I'Academie,  No.  6,  1894. 

Le  chapitre  du  Divorce  dans  le  protocole  final  de  la  Conference 


APPENDIX    B  377 


pour  la  Codification  dii  Droit  international  prive,  reunie  en  1894  a 
La  Haye.     By  Dr.  Flaischlen. 

Revue  de  Droit  international,  No.  3,  254,  1895. 

Las  Conjerencias  de  Derecho  internacional  privado  de  El  Haya. 
By  Dr.  Manuel  Torres  Campos,  Professor  of  Public  and  Private 
International  Law  in  the  University  of  Granada;  Member  of  the 
Institute  of  International  Law. 

Revista  General  de  Legislacion  y  Jtirisprudencia,  tomo  86,  533, 

1895. 

N.  B. — Professor  Torres  Campos  has  also  treated  of  The  Hague 
Conferences  of  1893  and  1894  in  his  "Bases  de  una  Legislacion  sobre 
Extraterritorialidad,"  Madrid,  1896,  p.  196,  and  the  first  appendix 
to  it. 

The  Convention  of  The  Hague  of  14th  November,  i8p6,  especially 
in  connection  with  the  Execution  of  Foreign  Judgments.     By  Dr.  C. 

D.  ASSER. 

Report  of  the  Twentieth  Conference  of  the  International  Law  As- 
sociation [1901]  299. 

The  Desirability  of  the  British  Government  Taking  Part  in  the 
Legal  Conferences  at  The  Hague  on  Private  International  Law,  and 
in  a  Conference  for  Securing  Unity  of  Maritime  Law.  By  Sir 
Walter  Phillimore,  Bart.,  D.  C.  L.,  Judge  of  the  High  Court  of 
Justice  of  England.  Report  of  Twenty-first  Conference  of  same 
[1901],  80. 

Quelques  Reflexions  sur  les  dernieres  Conventions  de  La  Haye, 
concernant  le  mariage  et  la  tutelle.     By  Mr.  Louis  Olivi. 

Revue  de  Droit  International,  etc.,  VI.  Deuxieme  Serie,  41. 

Das  Haager  Abkommen  iiber  internationales  Privatrecht.  Von 
Dr.  Jur.  Neumeyer. 

Zeitschrift  fur  internationales  Privat-  and  Strafrecht,  etc.,  IX,  453. 

La  Codification  du  Droit  International  Prive.  By  Professor 
T.  M.  C.  AssER,  Jur.  Dr.,  Councilor  of  State,  President  of  The 
Hague  Conferences. 

Revue  de  Droit  International,  etc.,  Deuxieme  Serie.     IV. 

La  Convention  de  La  Haye  du  14  Novembre  i8g6,  relative  a  la 
procedure  civile.     By  the  same.     1901. 

La  Codification  du  Droit  International  Prive.  Quatrihne  con- 
ference tenue  a  La  Haye.     By  the  same. 

Revue  de  Droit  International,  etc.     Deuxieme  Serie.     VI,  516. 


378      CONGRESS   OF  LAWYERS  AND   JURISTS 

The  Beginnings  0}  an  Official  European  Code  0}  Private  Inter- 
national Law.  By  Simeon  E.  Baldwin,  LL.D.,  Associate  Justice 
of  the  Supreme  Court  of  Errors  of  Connecticut.  Professor  of  Private 
International  Law  in  Yale  University.     Yale  Review,  XII,  10.     1903. 

The  New  Code  0}  International  Family  Law.      By  the  same. 

Yale  Law  Journal.     XII,  487.     1903. 

The  Hague  Conference  of  1904  for  the  Advancement  of  Private 
International  Law.     By  the  same. 

Yale  Law  Journal,  XIV,  i.     1904. 


APPENDIX   C 

FOREIGN   DECREES    OF   DIVORCE 

Translation  of  Sig.  Pavia's  Remarks  on  the  subject : 
"  To  What  Extent  Should  Judicial  Action  by  Courts  of 
a  Foreign  Nation  be  Recognized:  Considered  with 
especial  reference  to  the  status  of  individuals  as  affected 
by  divorce  or  other  decrees  and  the  right  to  represent 
the  person  or  property  of  another."  {See  p.  20 j  in 
the  body  of  the  proceedings  for  the  original  in  Italian.) 

The  divorce  problem  in  Italy  may  be  stated  in  these  terms: 
The  august  words  of  the  King — upon  an  occasion  when  such  a 
statement  becomes  a  binding  promise  —  were:  It  is  necessary  to 
regulate  the  marriage  laws  in  order  that  the  tyranny  of  perpetuating 
discord  in  matrimony  may  be  aboUshed. 

This  was  said  after  a  bill  had  been  presented  to  Parliament  in 
force  of  which  dissolution  of  marriage  would  be  granted  upon  the 
ground  of  conviction  of  crime,  of  incurable  disease,  of  cruel  and 
inhuman  treatment,  and  of  desertion. 

A  statesman,  whose  death  is  mourned  by  the  political  and 
juridical  world,  Giuseppe  Zanardelli,  made  himself  champion  of 
this  reform,  but  strong  opposition  from  the  church,  so  powerful  in 
Italy,  succeeded  in  arresting  the  movement  towards  any  modification 
of  the  marriage  laws. 

To-day  divorce  still  exists  as  a  project  of  law  in  our  parliamentary 
records,  but  many  years  must  pass  before  Italy  shall  count  among 
its  civil  laws  the  one  which  civilization  demands,  i.  e.,  end  to  the 
conjugal  prison. 

Meanwhile,  to  those  oppressed  by  matrimonial  infelicity  only  one 
remedy  appeared  available.  Between  the  love  of  country,  which 
constrains  every  one  to  remain  citizen  of  the  land  which  gave  him 
birth,  and  the  bitter  sorrow  of  unhappy  domestic  life,  legal  means 
were  found  by  which  citizenship  could  be  renounced  in  order  to 
obtain  freedom  from  matrimonial  bonds.     Having  obtained  natural- 

379 


38o     CONGRESS   OF  LAWYERS  AND   JURISTS 

ization  in  a  country  where  divorce  is  granted,  the  Italian  could 
return  to  his  fatherland  as  a  foreigner  to  ask  the  execution  of  a  sen- 
tence of  divorce  accorded  to  him  in  his  land  of  adoption. 

A  fierce  battle  was  waged  around  the  newly  discovered  legal 
means,  both  in  doctrine  and  in  jurisprudence.  The  believers,  the 
timid,  and  the  reactionists  arose  en  masse  to  declare  that  a  foreign 
sentence  could  not  be  executed  in  the  Kingdom,  as  it  was  merely  a 
subterfuge  to  enable  the  Italian  magistrates  to  pronounce  that 
divorce  which  the  Italian  code  declares  to  be  against  public  order, 
inasmuch  as  our  legislation  proclaims  the  indissolubility  of  matrimony. 

On  the  other  hand,  the  liberals  and  reformers  held  that  the  exequa- 
tur of  a  fact  not  in  fieri,  but  already  accomplished  in  other  countries, 
was  but  a  consequence  of  the  respect  owed  to  the  laws  of  those  coun- 
tries. The  jurists  were  divided  into  two  camps,  and  while  the  courts 
of  Venice  and  Florence  allowed  the  foreign  sentences  of  divorce, 
the  Supreme  Court  of  Turin — in  a  recent  case  which  occasioned  much 
discussion  among  jurists — not  only  forbade  the  legalizing  of  foreign 
divorces  between  former  citizens  of  the  Kingdom  naturalized  in  other 
countries,  condemning  the  changed  citizenship  as  [raus  legis,  but 
also,  always  under  the  pretext  of  violation  of  public  order,  forbade 
the  recognition  of  divorce  between  foreigners.  The  last  named 
having  always  been  foreigners  had  believed  that  Article  6  of  Prelimi- 
nary Dispositions  in  the  Italian  Code  did  not  consist  of  vain  words 
when  it  stated  that  family  relations  are  to  be  regulated  by  the  laws 
of  the  nation  of  which  the  foreigner  is  citizen. 

Therefore,  the  decision  of  the  Supreme  Court  of  Turin  is  erroneous, 
and  as  the  denial  of  the  said  decision  is  of  true  international  interest, 
it  behooves  this  Congress,  here  assembled  for  research  looking  to 
the  stabiUty  of  justice  in  all  civilized  nations,  to  promulgate  a  resolu- 
tion that  in  Italy — a  land  consecrated  to  justice — should  not  align 
such  a  strange  juridical  error.  All  of  you  should  be  interested  in 
associating  vourselves  to  combat  this  error. 

Men  come  from  every  part  of  the  world  to  enjoy  the  splendid 
natural  advantages,  or  to  admire  the  beauty  of  the  art  which  has 
filled  with  gems  the  hundred  cities  of  our  Italy,  and  the  attractiveness 
of  our  environment  draws  many  strangers  to  estabhsh  permanent 
homes  among  us,  some  looking  for  rest  and  quiet  on  the  shores  of  the 
Bay  of  Naples,  or  in  the  golden  shell  of  Palermo;  others  seeking  more 
wealth  in  the  opulent  cities  of  Lombardy.     Now,  if  it  be  right  that 


APPENDIX    C  s8i 


o'^ 


these  new  citizens  adapt  themselves  to  the  general  laws,  it  is  also  just 
that  they  should  not  lose  all  the  privileges  they  enjoyed  through  the 
laws  of  their  former  countries,  i.  e.,  the  right  to  regulate  their  domestic 
relations,  if  necessary,  by  divorce. 

I  do  not  bring  before  you  for  discussion  the  question  of  former 
Itahan  citizens  who,  having  acquired  foreign  citizenship,  may  or 
may  not  have  the  right  to  ask  the  Italian  courts  to  acknowledge  the 
divorces  ol:)tained  in  their  new  country;  I  speak  only  for  the  for- 
eigners' right  to  the  protection  of  our  laws.  I  do  not  come  to  defend 
a  national  right,  I  come  to  maintain  with  you  and  for  you — our  wel- 
come guests  from  every  far-away  land,  who  come  to  Italy  to  enjoy  the 
stabiHty  of  our  chmate,  the  warmth  of  our  sun — that  you  may  equally 
enjoy  the  stabihty  and  the  protection  of  our  laws.  Now,  Article  3 
of  our  Civil  Code  states  that  foreigners  are  admitted  to  share  the 
rights  accorded  to  Italian  citizens  in  Article  12,  Prehminary  Disposi- 
tions, and  by  Article  941  of  the  Code  of  Civil  Procedure,  authority  is 
bestowed  upon  foreign  courts  to  pronounce  upon  cases  relating  to  the 
pubhc  laws  of  their  respective  states,  and  therefore  we  argue  that  the 
tribunals  of  the  Kingdom  have  the  faculty  of  deciding  upon  cases  which 
regard  the  public  laws  of  the  other  nations.  According  to  Articles 
105  and  106  of  the  Code  of  Procedure  a  foreigner  can  be  summoned 
before  the  tribunals  of  the  Kingdom  in  any  controversy  whatsoever 
7ion  escliisa  his  status  personal.  It  can  be  admitted  up  to  a  certain 
point,  that  although  being  allowed  to  plead  his  rights  before  Italian 
magistrates,  a  foreigner  may  not  ask  the  declaration  of  divorce  ab 
origine  in  the  Kingdom,  but  with  the  decree  already  obtained  in  the 
foreign  country,  then  nothing  is  asked  but  the  acknowledgment  in 
Italy  of  the  sovereignty  of  foreign  practice  in  its  own  territory. 

There  is  nothing  contrary  to  our  Pubhc  Laws  in  executing  a 
foreign  decree  of  divorce,  for  the  reason  that  it  is  simply  giving  recog- 
nition of  it  as  an  act  of  foreign  law.  From  the  time  the  sentence  is 
pronounced  in  the  foreign  country  between  the  parties  pleading,  they 
have  acquired  their  free  status  which  is  a  true  jus  quesitiim  that 
should  be  acknowledged  by  the  Itahan  courts.  This  would  not  con- 
stitute co-operation  in  the  work  of  a  foreign  magistrate  by  an  Itahan 
magistrate,  as  our  opponents  contend,  but  when  an  Itahan  judge  is 
called  upon  to  estabhsh  a  juridical  act  made  and  confirmed  in  a 
foreign  country,  far  from  co-operating,  he  is  simply  acknowledging 
the  sovereignty  of  a  foreign  judgment,  and  does  not  concern  himself 


382      CONGRESS   OF  LAWYERS  AND   JURISTS 

with  the  imphed  opposition  to  the  national  laws  of  public  order  in 
Italy,  nor  does  he  constitute  any  point  except  the  indirect  effect  of 
the  foreign  sentence  of  divorce,  and  implying  the  acknowledgment 
of  the  sovereignty  of  foreign  justice. 

Divorce  lacing  forbidden  in  Italy,  and  the  indissolubility  of  mar- 
riage proclaimed  by  reasons  of  public  order,  it  follows  as  a  legal 
consequence  that  Italian  magistrates  cannot  pronounce  dixorce, 
whether  asked  by  citizens  or  by  foreigners,  because,  being  a  question 
of  public  order,  this  law  must  be  rigidly  observed  in  the  kingdom 
regarding  citizens  as  well  as  foreigners  who  are  living  under  its  laws, 
but  when  it  is  a  question  of  foreign  divorce  obtained  by  foreigners  in 
a  foreign  land,  then  it  is  not  contrary  to  our  laws  of  public  order  and 
it  cannot  be  forbidden  to  our  magistrates  to  declare  and  to  estimate 
the  juridical  consequence  of  the  status  of  the  said  foreigners  which 
has  been  legally  constituted  by  competent  foreign  tribunal. 

In  this  case  the  Italian  magistrates  have  before  them  two  for- 
eigners who  demand  the  acknowledgment  of  a  fact  which  concerns 
their  personal  status,  the  which  is  regulated  by  the  laws  of  their 
nation,  and  giving  place  to  their  request  cannot  disturb  our  public 
order  because  it  is  a  question  of  an  act  accomplished  in  their  country 
in  conformity  with  the  laws  there  in  force. 

It  is  said  by  our  opponents  that  in  pursuance  of  Article  1 2  of  our 
Preliminary  Dispositions  that  foreign  court  sentences  may  not  dis- 
parage the  prohibitory  laws  concerning  persons,  property,  and  acts  or 
the  laws  regarding  in  any  manner  whatsoever  public  order  and 
decency,  but  this  is  an  error,  inasmuch  as  a  law  of  the  Kingdom  may 
be  derogated  by  a  foreign  sentence  if  it  be  authority  respected  by  the 
foreigner;  but  our  laws  have  no  such  authority  in  what  may  concern 
the  status  or  the  legal  qualifications  of  the  foreigners  and  their  domestic 
relations,  because  these  are  regulated  by  the  laws  of  the  nations  to 
which  they  belong,  therefore  the  foreign  decree  of  divorce  pronounced 
according  to  the  personal  status  of  the  pair  does  not  derogate  the 
Italian  prohibitory  laws. 

Our  opponents  say,  finally,  that  acknowledgment  of  a  foreign 
sentence  of  divorce  is  jraus  legis,  and  that  the  Italian  magistrates, 
guardians  and  keepers  of  their  country's  laws,  must  repulse  any 
offence  whatsoever,  in  whatsoever  manner  it  may  be  made  to  them. 

The  argument  has  no  foundation  in  fact. 

To  plead  an  act  fraus  legis,  it  becomes  necessary  to  show  that 


APPENDIX    C  38^ 


the  agent  is  held  under  the  law  which  he  intends  to  elude.  Now, 
the  actors  in  this  case  are  and  remain  foreigners,  either  such  ab 
origine  or  become  so  by  law,  and  if  the  law  which  regulates  their 
persoT^al  status  be  the  foreign  law  and  not  the  Italian  law,  it  fol- 
lows there  cannot  be  jraus  in  avaihng  themselves  of  a  law  which  is 
not  one  they  would  wish  to  elude. 

Yesterday  a  German  orator,  sustaining  with  efficacy  the  thesis  of 
the  immovable  judge,  named,  in  tones  of  admiration  and  reverence, 
one  renowned  among  Italian  jurists,  P.  S.  Mancini.  Permit  me, 
to-day,  to  name  in  our  honor,  a  German  savant,  Prof.  Windschrid, 
the  leader  of  the  legion  of  Italian  jurists  who  are  bravely  contending 
in  defense  of  our  cause. 

The  jurisprudence  of  Germany,  Switzerland,  England,  and  your 
own  of  the  United  States  is  in  our  favor,  and  I  believe  I  am  rendering 
homage  to  the  principle  of  solidarity  when  I  invite  you  to  sanction 
upon  this  auspicious  occasion,  the  principle  that  no  authority  may 
touch  the  legal  patrimony  of  foreigners  in  questions  of  personal 
status,  and  therefore  I  propose  to  this  Congress  a  motion  which 
voices  these  sentiments. 

While  in  my  quality  of  jurist  I  ardently  desire  to  see  in  the  land 
of  Cesare  Beccaria — one  of  the  first  among  those  who  abolished  the 
death  penalty — abolished  the  penalty  of  eternal  marriage,  which  is 
the  moral  death  of  all  that  is  beautiful  in  family  life,  my  heart  feels 
that  the  only  indissolubility  to  which  I  can  give  my  vote  is  the  cult 
of  respect  and  of  enthusiasm  which  I  entertain  for  you— the  powerful 
priests  of  human  justice. 

I  offer  the  following  resolution: 

Be  it  resolved  by  the  Jtiridical  Congress  of  Saint  Louis,  in  conven- 
tion assembled,  through  the  respect  due  the  juridical  personal  patrimony 
0}  foreigners  in  question  of  status,  That  in  all  nations  in  which  strangers 
enjoy  civil  rights,  recognition  shall  be  given  their  national  sentences  of 
divorce. 


APPENDIX  D 

EXTRADITION   TREATIES 

Observations  submitted  by  his  Excellency  Senor  Don 
Manuel  de  Azpiroz  in  support  of  his  resolution  on  the  sub- 
ject of  extradition. 

All  progress  in  the  path  of  law  conduces  to  unfold  and  strengthen 
the  sentiment  of  human  sohdarity.  The  acquiescence  in  the  feeling 
that  the  punishment  of  grave  offences  against  the  social  order  becomes 
a  cause  of  common  interest  to  all  nations,  is  worthy  of  particular 
consideration.  This  advanced  step  shows  how  desirable  is  the  mutual 
aid  of  governments  in  the  operation  of  punitory  justice,  for  the  sake 
of  human  solidarity. 

The  old  prejudice  that  made  one's  own  country  a  shelter  for 
culprits  from  abroad,  happily  becomes  less  and  less  imperative. 
The  interest  of  men  in  the  preservation  of  social  order  everywhere 
increases  whilst  civilization  apjjroaches  them  favoring  their  inter- 
course and  expanding  the  field  of  their  pacific  ventures.  Therefore, 
the  leaders  of  sovereign  states  are  better  disposed  to  deliver  up 
reciprocally  refugees  charged  with  or  convicted  of  atrocious  crimes, 
and  the  legislators,  in  constitutional  countries,  to  authorize  the  execu- 
tive branch  of  government  to  take  the  proper  action,  by  statutory 
provisions  or  in  virtue  of  diplomatic  agreements,  previously  proclaimed 
and  enforced. 

The  treaties  on  extradition,  that  began  by  giving  a  short  list  of 
crimes  subject  to  the  proceedings  provided  for,  have  gradually 
engrossed  the  number  of  offences.  Special  regulations  intended  in 
some  states  to  facilitate  the  execution  of  extradition  treaties  or  to  fill 
the  lack  of  such  conventions  realize  a  parallel  advancement. 

Among  the  countries  that  excel  in  this  e.xertion,  Switzerland  must 
be  mentioned  first.  Its  legislative  act  on  the  subject  includes  all  the 
improvements  attained  to,  till  the  close  of  the  nineteenth  century. 
Mexico  afterwards  proclaimed,  on  May  the  19th,  1896,  its  Act  on 
extradition  for  both  purposes  above  mentioned,  namely,  the  com- 
plement  and   the   supplement   of   international   stipulations  on  the 

384 


APPENDIX    D  385 


matter  of  extradition.     The  Mexican  law  followed  in  most  points 
the  Swiss  standard. 

A  long  experience  had  taught  us  how  deficient  is  the  system  of 
enumerating  the  offences  which  ought  to  cause  the  extradition  of 
their  perpetrators.  Serious  difficulties,  indeed,  were  soon  arisen 
from  the  task  of  adjusting  the  catalogue  of  crimes  and  the  description 
of  the  facts  constituting  some  of  them,  in  such  a  manner  that  they 
should  not  dislike  the  names  and  definitions  thereof  given  in  the  laws 
of  the  contracting  states.  Often  an  offense  is  known  under  difterent 
names;  sometimes  nominal  identity  does  not  imply  an  identical 
ensemble  of  circumstances  which  determine  the  species  of  wrong- 
doing, under  the  penal  systems  of  several  states.  If  a  compound 
vocabulary  is  introduced  in  order  to  obviate  those  discrepancies,  the 
natural  unfitness  in  some  particulars  to  the  ideas  and  phraseology 
accepted  under  the  influence  of  customs  and  scholar  theories  which 
are  necessarily  rather  dissimilar  to  each  other,  shall  prove  likewise 
annoying  to  both  sides,  thus  doubhng  the  obstructions  which  that 
expedient  was  intended  to  remove.  And  in  regard  to  this,  it  is 
advisable  not  to  forget  that  in  the  contentions  sustained  between  the 
parties  interested  in  the  proceedings  on  extradition,  cunning  lawyers 
make  use  of  all  kinds  of  arguments,  and  that  the  conflict  of  penal 
laws,  confusion,  and  doubts  therefrom  arisen  aftord  them  a  great 
resource  to  defeat  the  salutary  purposes  set  forth  by  the  contracting 
states  in  the  very  instrument  governing  the  case  in  litigation.  I 
profess  that  to  mathematically  equalize  the  running  of  several  watches 
is  less  difficult  than  to  obtain  a  perfect  accord  between  definitions 
given  in  laws  of  the  independent  states. 

In  order  to  apply  these  abstract  considerations  to  concrete  exam- 
ples, let  me,  gentlemen,  report  only  two  cases  really  passed  under 
treaties  concluded  between  Mexico  and  certain  foreign  states  and 
framed  on  the  base  of  the  usual  list  of  some  specially  vexatious  offences- 

A  Mexican  court  requested,  through  the  diplomatic  channel,  the 
extradition  of  the  apparent  author  of  an  offence  which  is  called 
" fraude^'  (fraud)  in  the  penal  code  of  the  state  where  it  took  place. 
To  the  request  for  the  extradition  of  the  accused,  the  respondent 
government  took  exception  to  the  fact  that  the  wrong  named  fraud 
was  not  found  in  the  list  of  offences  deserving  extradition.  The 
prosecutor  government  replied  that  the  corpus  delicti,  as  it  was  shown 
by  the  papers  accompanying  the  requisition  for  the  surrender  of  the 


386     CONGRESS   OF   LAWYERS   AND   JURISTS 

defrauder,  was  exactly  the  one  contained  in  the  definition  of  the 
offense  that  in  the  treaty  was  termed  "/fwr/o,  orobo  sin  violencia" 
(larceny),  being  therefore  the  ^^ fraude"  consigned  in  the  penal  code 
of  the  Mexican  state  and  the  larceny  (hurio),  registered  in  the  con- 
vention, synonymous  terms.  This  argument,  however,  could  not 
convince  the  government  requested,  which  went  on  to  maintain 
that  the  extradition  was  not  authorized  by  the  treaty,  because  it  did 
not  include  any  offence  under  the  name  of  "  fraude"  expressed  in 
the  requisitory  papers. 

Another  case.  A  theft  of  money  was  committed  by  means  of 
forged  documents.  According  to  the  forum  delicWs  law  the  forgery 
of  documents  for  the  purpose  of  thieving  does  not  constitute  a  specific 
principal  offence,  but  only  an  aggravation  (circumstancia  agravante) 
of  the  wrong  done  or  contemplated  by  its  mean;  whilst  in  the  con- 
cerning treaty,  the  list  enumerates  "Forgery,  or  the  utterance  of  forged 
papers"  among  the  specific  offences  that  can  cause  extradition. 
By  that  reasoning  the  criminal  proceedings  were,  according  to  the 
law  of  the  local  jurisdiction,  instituted  for  the  offence  of  theft 
{robo) ,  and  in  the  diplomatic  requisition  made  for  the  surrender  of  the 
accused  as  its  author,  care  was  taken  to  give  warning  as  to  a  set 
of  forged  papers  through  which  the  theft  was  fulfilled,  as  it  was  evi- 
denced in  the  depositions  upon  which  the  warrant  for  his  arrest  was 
issued  and  which  were  accompanying  the  requisition.  This  reasoning 
was  of  no  avail.  The  government  to  whom  the  demand  was  addressed 
decided  that,  notwithstanding  the  evidence  of  the  forgery  produced, 
the  matter  of  the  trial  was  not  a  forgery,  but  a  theft  (robo),  whilst  the 
requisition,  rather  differently,  expressed  as  the  special  matter  of  the 
extradition  proceedings  a  theft  through  a  forgery,  and  that  in  the 
treaty  this  offence  was  unknown,  therein  being  found  "Larceny, 
defined  to  be  the  theft  of  ....  money,  etc.,"  a  species  different  from 
"  Forgery  or  the  utterance  of  forged  papers."  This  narrow  judgment 
formed  under  the  influence  of  a  casuistical  jurisprudence  pre- 
vailed, and  the  thief  and  forger  was  released  and  his  impunity  pro- 
tected by  the  authorities  of  the  state  wherein  he  got  a  refuge. 

Some  more  and  similar  cases  could  be  reported;  but  it  is  not 
necessary  to  fatigue  your  kind  attention  by  their  narrative,  being, 
furthermore,  easy  to  you  to  recollect  other  ones,  perhaps  met  by  you 
in  your  practice,  or  to  frame  them  in  your  minds  according  to  the 
premises. 


APPENDIX    D  387 


To  overcome  such  discrepancies  the  Mexican  law  introduced  a 
system  that  seems  to  be  entirely  satisfactory.  It  is  carried  out  in 
the  few  articles  that  I  beg  to  translate  here : 

"Article  2.  Extradition  can  only  be  granted  by  virtue  of  pun- 
ishable oflFences  of  an  ordinary  nature,  in  their  four  degrees  of  at- 
tempted, initiated,  frustrated,  and  consummated  offence  as  defined 
in  the  penal  code  of  the  Federal  District  of  Mexico,  and  which  may 
not  be  comprised  within  the  following  exceptions: 

"I.  Acts  which  are  not  punishable  in  the  state  requesting  the 
extradition. 

"II.  Acts  which  can  only  be  punishable  by  fine,  or  by  imprison- 
ment not  above  one  year,  in  the  Federal  District  of  Mexico. 

"III.  Acts  which,  in  conformity  with  the  internal  law  of  the  state 
requesting  the  extradition,  deserve  no  greater  punishment  than  a 
fine,  exile,  or  imprisonment  for  a  term  of  one  year. 

"IV.  Acts  which  in  the  Federal  District  of  Mexico  cannot  be 
prosecuted  unless  by  a  private  complainant,  if  such  a  part  does  not 
initiate  the  prosecution. 

"V.  Acts  which  are  no  longer  punishable,  owing  to  prescription 
of  the  action  or  of  the  punishment,  in  conformity  with  the  penal 
code  of  said  District,  or  with  the  internal  law  of  the  state  making 
the  requisition. 

"VI.  Acts  which  have  been  the  matter  of  acquittal,  pardon, 
amnesty,  or  complete  expiation  on  behalf  of  the  accused. 

"VII.  Offences  committed  within  the  jurisdiction  of  the  Republic. 

"Article  4. — Section  I.  The  state  making  the  requisition  must 
prove : 

"A.  That  the  offences  enumerated  in  Section  II  of  this  article, 
their  motives  or  purposes,  even  if  considered  as  aggravating  circum- 
stances, shall  not  be  the  subject-matter  of  the  prosecution  proceed- 
ings, unless  the  defendant  shall  voluntarily  consent  to  be  tried  for 
such  offences,  or  if,  having  remained  within  the  territory  of  said 
state  for  more  than  two  consecutive  months,  in  perfect  liberty  to 
leave  it,  he  should  not  avail  himself  of  that  right. 

"Section  II.  The  offences  to  which  the  paragraph  A  refers  are: 
"A.  Acts   committed  prior  to   the  extradition,   omitted  in   the 
requisition  or  having  no  connection  with  those  therein  specified. 
"B.  Offences  of  a  religious,  political,  or  military  nature,  and 


388     CONGRESS   OF  LAWYERS   AND   JURISTS 

those  constituting  smuggling,  even  though  connected  with  the  com- 
mon offence  that  may  have  given  rise  to  the  extradition;  it  being 
understood  that  smuggHng  consists  of  the  importation,  exportation, 
or  traffic  of  merchandise  in  contravention  of  fiscal  laws. 

"Article  lo.  I.  The  extradition  of  criminals  who  may  have  been 
slaves  in  the  country  where  they  have  committed  the  offense  charged 
with  shall  not  be  granted. 

"11.  No  Mexican  shall  be  surrendered  to  a  foreign  state,  save 
in  cases  deemed  exceptional  by  the  Executive  of  the  Union. 

"III.  Persons  naturalized  in  the  Republic  shall  be  surrendered 
to  a  foreign  government  claiming  them,  if  their  extradition  is  asked 
within  two  years  after  the  time  when  they  became  naturalized." 

These  rules  being  comprehensive  enough  and  properly  safe- 
guarded by  exceptions,  they  answer  on  one  side  to  the  requirements 
of  equity  and  politics,  and  comply  on  the  other  side  with  the  praise- 
worthy purpose  of  offering  no  asylum  to  fugitives  from  justice  of 
foreign  countries,  whose  courts  claim  the  right  to  try  the  accused 
as  a  warning  against  crimes  and  offences.  Those  rules  and  their 
exceptions  solve  doubts  which  often  arise  on  the  classification,  dis- 
crimination, or  elimination  of  facts  contemplated  by  the  plenipo- 
tentiaries and  enumerated  in  the  usual  catalogue  of  the  extradition 
treaties. 

As  it  has  been  stated,  the  Mexican  system  is  characterized: 

I.  By  the  omission  of  particular  denominations  of  offences;  II.  By 
measuring  the  interest  for  extradition  through  the  importance  of 
penalties  inflicted  upon  the  offenders. 

Soon  after  the  passage  of  the  Mexican  law  on  extradition  the 
Kingdom  of  Italy  invited  the  Republic  of  Mexico  to  negotiate  a  treaty 
on  the  same  subject.  My  government  expressed  its  earnest  willing- 
ness, and  suggested  to  the  representative  of  the  Italian  government 
the  introduction,  in  the  project  of  the  convention,  of  synthetical 
rules  similar  to  those  in  the  Mexican  law.  After  careful  consideration, 
the  government  of  His  Majesty,  King  Humbert  received  with  favor 
the  principle  and  the  essential  features  of  the  Mexican  system,  and 
at  the  end  of  three  years  after  its  legal  sanction,  the  Republic  of 
Mexico  was  highly  gratified  by  the  indorsement  of  such  a  reform 
by  a  state  where  science  of  law  has  been  masterly  cultivated  since 
more  than  twenty  centuries  in  all  its  branches,  but  chiefly  in  criminol- 


APPENDIX    D  389 


ogy  and  in  international  law  during  the  last  period  by  many  wise 
men  of  worthy  reputation. 

The  treaty  on  extradition  between  my  country  and  Italy  was 
signed  at  the  City  of  Mexico  on  the  22d  of  May,  1899,  and  was  pro- 
claimed in  the  Republic  on  the  13th  of  October  in  the  same  year. 
Its  articles  bearing  on  my  theme  are  as  follows: 

"Article  II.  Extradition  will  take  place  on  account  of  common 
offences  excepting  those  that  are  indicated  in  Article  IV.  and  which, 
according  to  the  laws  of  the  two  contracting  states  in  force  at  the  time 
of  the  requisition,  should  have  been  or  shall  be  punishable  by  inflicting 
a  penalty  restricting  personal  liberty  for  more  than  one  year. 

"Extradition  will  also  take  place  in  cases  of  attempt  to  commit, 
or  of  complicity  in,  such  offences,  whenever  the  attempt  and  the 
complicity  are  punishable  by  imprisonment  for  more  than  one  year 
in  conformity  with  the  laws  of  the  two  countries. 

"Article  III.  Extradition  can  be  granted,  at  discretion  of  the 
requested  state,  even  on  account  of  offences  not  included  in  the 
preceding  article,  if  the  laws  of  both  the  contracting  states,  in  force 
at  the  date  of  the  demand,  allow  it. 

'  Article  IV.  Extradition  cannot  be  granted  on  account  of : 

1.  Unintentional  offences. 

2.  Printed  libels. 

'3.  Offences  of  a  religious  or  military  character. 
'4.  Political  offences,  or  deeds  connected  with  the  same. 
'Extradition,  notwithstanding,  shall  be  granted,  even  when  the 

accused  pleads  a  political  cause  or  purpose,  if  the  fact  which  is  the 
basis  of  the  demand  constitutes  in  itself  a  common  offence. 

"It  is  not  deemed  a  poHtical  crime  nor  a  crime  connected  with 
it  when  an  attempt  is  made  against  the  life  of  the  chief  or  sovereign 
of  any  of  the  contracting  states,  or  against  members  of  their  respec- 
tive families,  or  against  ministers  of  state,  when  the  attempt  con- 
stitutes a  punishable  manslaughter  or  poisoning  in  any  degree 
whatever." 

Let  me,  gentlemen,  be  joined  by  you  all  in  the  hope  that  the 
valuable  example  set  by  the  nation  which  is  rightly  proud  of  having 
inherited,  cultivated,  and  increased  the  treasury  of  the  Roman  juris- 
prudence, may  be  followed  by  the  other  prominent  powers,  when 


390     CONGRESS   OF   LAWYERS  AND   JURISTS 

they  enter  into  negotiations  either  to  adjust  anew  or  to  modify  existing 
treaties  for  extradition  on  the  system  introduced  by  Mexico  in  its 
legislation  for  designating  criminal  facts  that  shall  afford  ground  for 
the  surrender  of  their  perpetrators  seeking  asylum  in  foreign  coun- 
tries, to  their  natural  judges,  for  the  sake  of  justice. 

You,  wise  jurists,  statesmen,  and  counselors  to  governments,  if 
you  esteem  the  new  system  worthy  of  your  influential  commendation, 
you  will  render  to  the  administration  of  international  justice  a  help, 
deserving  remembrance  forever. 


APPENDIX    E 

PLEA  FOR  AN  INTERNATIONAL  FORM  OF  ARTICLES 

OF  ASSOCIATION  FOR  JOINT  STOCK 

COMPANIES 

De  la  necessite  de  faire  adopter  par  tous  les  etats 
d'Europe  et  d'Amerique  un  meme  principe  fondamental, 
international,  pour  la  souscription  du  capital  social  et  le 
versement  effectif ,  dans  les  societes  par  actions. 

By  M.  LOICQ   de   LOBEL,  PARIS,  FRANCE 

La  question  de  la  reforme  de  la  loi  sur  les  societes  par  actions  est 
I'objet  d'une  constante  preoccupation  chez  les  legislateurs  des  dif- 
ferentes  nations  et  particulierement  en  Amerique. 

Mais,  soit  qu'on  recule  devant  I'importance  de  la  tache  a  accom- 
plir,  soit  qu'on  redoute  une  obstruction  systematique  de  la  part  de 
certains  etats,  qui  considerent  avoir  donne  aux  societes  le  summum 
des  libertes  permises,  aucun  pays  n'a  voulu  prendre  jusqu'ici  I'ini- 
tiative  de  la  reforme  radicale  qui  s'impose  aujourd'hui. 

II  y  a  en  effet,  des  inegalitds  flagrantes  entre  les  lois  des  divers 
etats  americains,  comme  entre  les  lois  des  autres  etats  d'Europe; 
et  cependant  toutes  ces  lois  s'appliquent  dans  chacun  de  ces  ^tats 
aux  memes  industries,  qu'elles  ont  le  devoir  de  seconder,  sans  pour 
cela,  donner  aux  societes  qui  subissent  des  regies  plus  severes  ou  de 
plus  lourdes  charges,  dans  leur  formation,  des  avantages  superieurs 
a  ceux  dont  jouissent  ces  memes  societes,  quand  elles  vont  se  fonder 
dans  un  autre  etat. 

Sans  vouloir  faire  la  critique  des  lois  en  usage  dans  chacun  des 
etats  de  1 'Amerique,  je  puis  aisement  demontrer  le  prejudice  con- 
siderable que  cette  inegalitd  de  regies  cause  aux  Societes  des  divers 
pays  et  j'espere  etablir,  par  la,  I'utilite  de  la  reforme  que  je  propose 
au  Congres. 

Nous  avons  en  Europe,  comme  en  Amerique,  des  etats  oia  la  loi 
impose  aux  societes  commercials  par  actions,  pour  etre  valablement 
constituees,  d'avoir  la  totalite  de  leur  capital  souscrit  et  une  partie 

391 


392      CONGRESS   OF   LAWYERS   AND    JURISTS 

de  ce  capital  versee  en  especes.  En  France  la  loi  exige  la  totalite  du 
capital  souscrite  et  le  quart  versd.  En  Belgique,  c'est  le  dixieme 
seulement  qu'il  faut  verser  en  especes,  tandis  que  d'autres  etats 
comme  I'Angleterre  et  certains  dtats  de  I'Am^rique,  permettent  la 
constitution  des  societds  a  un  capital  "actions"  meme  tres  con- 
siderable, sans  imposer  I'obligation  d 'avoir  une  partie  des  fonds 
verses. 

II  en  resulte,  comme  nous  le  voyons  tres  souvent  en  France,  que 
les  Societds,  dont  la  souscription  du  capital  peut  rencontrer  de 
serieuses  difficultes,  vont  tout  simplement  se  constituer  en  Belgique 
ou  en  Angleterre  pour  venir  ensuite  proposer  leurs  actions  sur  le 
marche  franjais.     Je  suppose  qu'il  en  est  de  meme  aux  Etats-Unis. 

Je  tiens  a  dire  qu'il  n'entre  pas  dans  ma  pensee  de  critiquer 
les  principes  de  la  loi  beige,  dont  la  loi  frangaise  devrait,  a  mon  sens 
se  rapprocher  d'avantage;  car  elle  me  parait  plus  liberalement  ddictee 
en  vue  de  favoriser  toutes  les  industries  et  le  commerce. 

Mais,  je  puis  ddplorer  qu'a  cote  des  regies  sdveres,  imposdes  par 
notre  loi  franyaise  aux  Socidtes  par  actions,  nous  soyons  forces 
d'accepter  les  libertes  de  la  loi  anglaise,  a  laquelle  ont  trop  souvent 
recours  les  fondateurs  de  Societds  dont  I'objet  ne  repose  souvent 
que  sur  des  probabilites  et  parfois  sur  des  chimeres. 

Car,  en  eflfet,  moyennant  un  Idger  droit  de  timbre,  paye  au  Tresor 
franjais,  les  societds  etrangeres  peuvent  negocier  leurs  titres  dans 
les  memes  conditions  que  les  notres.  Files  offrent  au  public  la  meme 
garantie,  quant  a  la  legalitd  de  leur  constitution  et  tr^s  souvent  les 
apparences  de  meme  securitd,  selon  I'habilete  des  lanceurs  de  I'affaire. 
Mais  elles  ont  surtout  la  faculte  de  majorer  les  apports,  sans  limite 
d'aucune  sorte  et  c'est  la  surtout  que  reside  le  danger  pour  I'epargne 
nationale. 

Nous  avons  subi  les  consequences  de  ce  facheux  etat  de  choses 
dans  plusieurs  circonstances  et  je  ne  veux  rappeler  ici  que  le  dernier 
krach  des  mines  d'or  du  Transvaal,  d<x  autant  a  I'enorme  majoration 
des  apports  qu'a  la  mauvaise  foi  de  certains  fondateurs. 

Le  premier  contrecoup  de  cette  anomalie  c'est  vous,  Americains, 
qui  le  subissez  forcdment;  car  nous  attribuons  aux  actions  de  vos 
socidtds  les  memes  risques  qu'aux  actions  des  socidtes  anglaises  et 
votre  papier  n'a  pas  encore  trouve  chez  nous  la  faveur  qu'il  mdrite, 
par  suite  de  I'alea  qui  reste  attachd  a  cette  indgalitd  d'obligations 
dans  la  constitution.     Et  cependant  vos  actions  de  chemins  de  fer, 


APPENDIX    E  393 


comme  beaucoup  d'autres,  peuvent  rivaliser,  comme  securile,  avec 
les  notres  et  sont  de  celles  qu'un  pere  de  famille  peut  mettre  en 
portefeuille. 

Par  consequent,  le  jour  ou  un  systeme  d'egalite  dans  les  obliga- 
tions sera  etabli  dans  chacun  des  etats  d'Europe  et  d'Amerique, 
nous  aurons  une  repartition  plus  equitable  de  la  valeur  du  titre  de 
chacune  des  Societes;  et  le  securite  que  reclame  I'acheteur  ne  reposera 
plus  cette  fois  dans  la  forme  de  la  Societe  ou  sa  nationalite,  ou  meme 
dans  la  solvabilite  des  fondateurs,  mais  dans  la  valeur  intrinseque 
de  I'entreprise  et  dans  les  resultats  de  son  exploitation. 

Je  ne  viens  pas  reclamer  une  restriction  aux  libertes  des  lois 
anglaises,  beiges,  ou  americaines;  mais  je  propose  au  Congres 
d'etudier  la  possibilite  de  la  formation  d'une  commission  inter- 
nationale,  qui,  apres  examen,  soumettrait  aux  divers  etats  d'Europe 
et  d'Amerique  I'adoption  d'un  meme  principe  fondamental  inter- 
national pour  les  obligations  relatives  a  la  souscription  du  Capital  et 
aux  versements  effectifs  a  operer  dans  les  Societes  par  actions. 

II  m'a  paru  qu'il  appartenait  au  Congres  de  St.  Louis  de  prendre 
cette  initiative  pour  le  plus  grand  bien  de  tous  les  etats.  Je  ne  me 
dissimule  pas  les  difficultes  de  la  tache  qu'aura  a  accomplir  cette 
commission  international;  mais  il  faut  qu'elle  suive  le  progres  de 
notre  siecle  et  qu'elle  fasse  comprendre  aux  nations  la  necessite 
d'avoir  des  lois  identiques  pour  les  emissions  de  valeurs  industrielles 
ou  commerciales  et  la  facilite  de  leur  negociation  sur  tous  les  marches 
de  I'etranger. 

En  agissant  ainsi  nous  sauvegarderons  en  meme  temps  I'Epargne 
publique. 

Si  ma  proposition  est  prise  en  consideration  par  le  Congres, 
j'aurai  plus  tard  I'occasion  de  developper  plusieurs  clauses  addition- 
nelles  et  relatives:  i.  a  la  reduction  des  Apports  au  quart  du  capital, 
comme  maximum;  et  2.  a  I'autorization  a  donner  aux  organisateurs 
d'une  Societe,  a  prelever  sur  les  premiers  fonds  verses,  une  somme, 
pouvant  varier  de  5  a  10  %  pour  faire  face  aux  necessites  de  1 'organisa- 
tion et  aux  frais  de  constitution  legale;  mais,  avec  I'obligation  de 
deposer  en  Banque,  au  compte  personnel  de  la  future  societe  le  sur- 
plus encaisse  par  eux.  De  la  sorte,  si  les  efforts  des  organisateurs  ne 
pouvaient  aboutir,  pour  la  constitution  definitive  de  la  Societe  et  son 
exploitation  reguli^re,  les  souscripteurs  rentreraient  surement  en 
possession  d'au  moins  90%  des  sommes  qu'ils  auraient  versees. 


APPENDIX    F 

NOTES  ON  CHINESE  LEGISLATIVE  PROCEDURE 

By  C.  M.  LACEY  SITES,  Ph.D. 
Professor  of  Political  Science  in  Nanyang  College,  Shanghai,  China 

This  Study  is  designed  to  outline  the  process  of  legislation  in  the 
Chine.se  Imperial  Government,  not  as  a  matter  of  politics,  but 
purely  as  a  matter  of  constitutional  forms.  It  is  based  mainly  on 
casual  reading  of  the  Peking  Gazette,  the  time-honored  ofl&cial 
bulletin  of  the  Imperial  Court — a  small,  yellow-backed  journal 
which  is  at  present  supplied  to  subscribers  under  the  more  descriptive 
name  of  Repository  oj  Edicts  and  Memorials. 

As  a  preliminary  matter,  and  in  order  to  get  an  idea  of  the  kinds 
of  subjects  to  which  imperial  attention  is  given,  we  may  note  the 
contents  of  a  single  issue  of  this  daily  gazette,  taken  at  random. 
(The  items  are  not  numbered  in  the  original,  but,  in  giving  a  trans- 
lated abstract,  it  will  be  convenient  to  distinguish  them  so.)  The 
issue  for  the  second  day  of  the  second  month  of  the  twenty-eighth 
year  of  the  Emperor  Kuang  Hsii  (nth  March,  1902)  has  the  following: 

1.  Officials  of  the  Board  of  Ceremonial  Observances,  of  the 
Imperial  Clan  Court,  of  the  Imperial  Board  of  Astronomy,  and 
others,  were  presented  at  imperial  audience  by  the  Board  of  Civil 
Office. 

2.  The  Provincial  General-in-Chief  of  Chihli  asked  the  Emperor's 
Commands. 

3. ,  preliminary  to  going  to  Shanghai,  asked  the  Emperor's 

Commands. 

4.  Duke ,  having  attended  the  oracles  at ,  reported 

the  discharge  of  his  commission. 

5.  Duke asked  leave  of  absence  for  ten  days. 

6.  and  were  summoned  to  an  interview  with  the 

Grand  Council. 

7.  It  is  the  Imperial  Will  that ,  having  been  granted  leave 

of  absence,  be  commanded  to  discharge  the  duties  of  his 

office. 

8.  An  imperial  decree:    ,  having  asked  leave  of  absence, 

394 


APPENDIX    F  395 


the  Board  of  Civil  Office  will  direct to  assume  the  duties  of 

that  office  in  addition  to  his  own. 

9.  An  imperial  decree  of  considerable  length,  ordering  military 
officials  to  correct  abuses  in  the  army,  and  ordering  provincial 
officials  to  recommend  plans  for  systematic  military  instruction. 

10.  An  imperial  decree  chiding  provincial  officials  for  delay  in 
establishing  provincial  colleges  as  previously  commanded. 

11.  A  memorial  from  high  officials  at  Canton,  reporting  the 
results  of  an  inspection  of  a  government  school  in  which  modern 
languages  are  taught,  and  recommending  successful  graduates  to 
official  rank.     (''Let  the  proper  Board  consult  and  memorialize.'^) 

12.  A  memorial  respecting  administrative  details  in  Manchuria. 
{''Notice  taken.") 

13.  A  memorial  from  the  Viceroy  of  Fuhkien  and  Chekiang 
provinces  respecting  the  appointment  of  a  district  magistrate.  ("Let 
the  Board  of  Civil  Office  consult  and  memorialize.'') 

14.  A  memorial  from  the  same  Viceroy,  reporting  upon  the  work 
of  his  subordinates. 

15.  A  memorial  from  the  Governor  of  Chekiang  province. 

We  may  obser\'e  that  these  fifteen  items  fall  into  four  groups: 
a.  Items  i  to  6  are  mere  matters  of  court  routine;  h.  Item  7  is  an 
informal  expression  of  the  imperial  will;  c.  Items  8  to  10  are  formal 
expressions  of  imperial  commands;  and,  d.  Items  11  to  15  are  repre- 
sentations from  high  officials,  to  which  are  attached,  in  most  instances, 
indorsements  showing  action  taken  upon  them  by  the  throne.  We 
are  now  concerned  with  such  forms  and  processes  as  are  exemplified 
in  groups  c  and  d. 

It  must  also  be  observed,  however,  that  none  of  these  items 
appear  to  bear  a  distinctively  legislative  character.  They  all  have 
rather  an  administrative  tone;  and  this  will  be  found  true  of  almost 
all  pronouncements  of  the  throne.  It  is  doubtful  whether  any  dis- 
tinction is  drawn  by  Chinese  officials  between  the  two  species  of 
acts.  In  clearly  legislative  acts,  as  will  be  seen  later,  the  forms 
employed  are  the  same  as  in  properly  administrative  acts.  As  to 
the  real  nature  of  the  act,  the  ambiguity  is  common  enough  outside 
of  China.  For  example,  French  usage  permits  the  President  to 
perform  acts,  by  decree,  which,  in  America,  would  be  reserved  to  the 
Legislature.  The  distinction  becomes  less  significant  in  practice  in 
a  state,  Hke  China,  in  which  the  chief  executive  is  also  the  supreme 


396     CONGRESS   OF  LAWYERS  AND   JURISTS 

legislative  authority.  In  the  interest  of  distinctness,  however,  we 
may  call  formal  administrative  acts  decrees,  while  the  term  edict  may 
be  reserved  to  those  acts  of  a  monarch  which  are  more  properly 
legislative. 

In  modern  constitutional  governments  there  may  generally  be 
distinguished  three  stages  in  legislation:  (i)  The  initiative,  or  pro- 
posal of  a  project  of  law;  (2)  the  passing  or  adojjtion  of  the 
project  by  act  of  a  legislative  body;  (3)  the  sanction  and  promulga- 
tion of  this  act,  as  law,  by  the  executive. 

In  a  monarchic  state,  like  China,  these  functions  may,  of  course, 
be  completely  merged.  But  although  the  Chinese  monarchy  is 
autocratic  in  form,  the  government  is  aristocratic  in  practice,  and, 
in  the  ultimate  facts  of  local  self-regulation,  the  state  has  many  of 
the  elements  of  democracy.  So  far  as  imperial  legislation  is  con- 
cerned, the  established  j)rocedure  bears  a  certain  analogy  to  that 
observed  in  parliamentary  governments.  Any  of  the  high  officials, 
at  Peking  or  in  the  provinces,  may  introduce  a  project  of  law  by 
memorial  to  the  throne.  The  memorial  goes  through  regular  chan- 
nels whereby  the  throne  obtains  the  advice  (and,  practically,  the 
consent)  of  legally  constituted  organs  of  government.  The  final 
enactment,  the  edict,  is  in  form  the  act  of  one  supreme  will;  but  in 
fact,  like  the  assent  of  the  King  of  England  to  an  act  of  Parliament, 
it  is  more  automatic  than  autocratic.  In  this  sense,  and  as  respects 
the  dominance  of  established  usage,  the  Chinese  Government  may 
be  said,  in  all  its  branches,  to  be  under  the  restraints  of  constitutional 
limitations,  as  the  British  Government  is — but  the  analogy  must  not 
be  pressed  too  far. 

A  Memorial  opens  with  the  name,  rank,  and  official  title  (in  re- 
verse order  to  that  here  given)  of  the  memorialist,  who  "  worshipfully 
sets  forth  that,"  etc.,  and  reverently  invokes  the  august  notice  and 
action  upon  the  matter  set  forth.  It  closes  with  a  similar  invocation, 
sometimes  in  more  specific  terms.  A  common  form,  at  the  present 
time,  is  to  invoke  expressly  both  Their  Imperial  Majesties,  by  title, 
the  Empress  Dowager  being  first  named,  then  the  Emperor. 

The  memorial,  when  officially  published,  usually  carries  an 
indorsement  indicating  what  action  has  been  taken  upon  it  by  the 
throne.  There  are  a  few  formulas  which  constantly  recur  in  this 
connection,  such  as  those  cited  in  items  11,  12,  and  13  above.     Some- 


APPENDIX    F  397 


times  the  formula  may  amount  to  an  enacting  clause.  For  example, 
a  memorial  of  last  year  (29th  Kuang  hsu,  12th  month,  23d  day), 
presented  by  three  chief  ministers  at  Peking,  praying  the  establishment 
of  a  general  superintendency  of  education,  had  for  indorsement  the 
word  Chih,  "It  is  our  will."  More  frequently,  however,  memorials 
embodying  projects  of  legislation  are  referred  to  one  of  the  "six 
Boards"  or  other  ministries  of  state,  or  to  two  or  more  ministries 

jointly.     A  common  formula  is,  "Let  the  Board  of 

consult  speedily  and  frame  a  memorial  on  the  matter."  In  such  a 
case,  if  the  project,  when  reported  back  by  this  Board,  is  considered 
suitable  for  legislative  action,  it  is  Hkely  to  be  made  the  subject  of  a 
subsequent  formal  edict. 

An  imperial  edict  is  always  introduced  with  two  words,  Shang  Yu, 
the  first  meaning  "high"  or  "supreme,"  the  second  word  meaning  an 
utterance  or  proclamation,  the  two  together  being  regularly  under- 
stood to  signify  a  pronouncement  of  the  throne.  With  this  simple 
introduction,  the  edict  proceeds  directly  to  the  subject  matter.  In 
all  important  enactments,  however,  it  is  customary  to  enter  upon  the 
subject  matter  with  a  considerable  preamble,  which  often  recites  one 
or  more  memorials  in  which  the  project  has  been  proposed  either 
by  way  of  initiative  or  by  way  of  report  from  a  ministry  to  which  the 
initiatory  memorial  had  been  referred.  In  any  case,  it  is  necessary 
to  have  a  "whereas"  or  two.  The  Chinese  mind  is  nothing  if  not 
reasonable — arguing  from  its  own  premises.  Argumentative  matter 
frequently  occupies  large  space  in  the  introduction  of  an  edict,  or 
even  in  the  body  of  it.  This  practice  suggests  a  considerable  regard, 
on  the  part  of  the  law-giver,  for  public  sentiment.  It  may  also  com- 
port with  a  patriarchal  conception  of  government  —  the  father  of  a 
great  people  calling  his  children  to  come  and  reason  together — even 
though  the  conclusion  of  the  matter  be  predetermined. 

An  edict  often  puts  forth  an  important  project  of  legislation  in 
terms  of  general  poUcy  only,  and  concludes  by  calling  upon  certain 
ministries  or  officials,  or  upon  ofi&cials  generally,  to  memorialize  the 
throne  with  detailed  propositions  for  the  working  out  of  the  scheme. 
A  notable  example  of  such  legislation  is  found  in  the  famous  edict 
of  27th  Kuang  Hsii,  7th  month,  i6th  day  (1901),  which  abolished 
the  traditional  scheme  of  tests  in  civil  service  examinations  and 
introduced  tests  on  modern  subjects.     This  essentially  revolutionary 


398     CONGRESS   OF   LAWYERS  AND   JURISTS 

edict,  as  promulgated,  occupied  only  about  eighteen  lines  of  twenty- 
two  characters  each.  About  six  lines  consist  of  preamble,  setting 
forth  the  abuses  of  the  old  system  and  the  new  demands  of  the 
times;  about  eleven  consist  of  legislation  proper,  directing  what 
classes  of  subjects  should  thereafter  be  made  the  basis  of  the  exam- 
inations and  outlining  the  principles  to  be  observed  in  judging  papers; 
while  one  line  is  occupied  with  a  command  to  the  Board  of  Ceremonial 
Observances  and  the  special  Commission  on  Government  Affairs, 
jointly,  to  consult  together  and  report  a  detailed  plan  for  carrying 
out  the  law.  Here  the  original  enactment,  general  in  its  terms,  may 
be  regarded  as  legislation  proper.  The  detailed  plan  for  working 
out  this  general  ])()licy,  when  later  reported,  approved,  and  duly 
promulgated,  might  rather  be  regarded  as  an  administrative  decree. 

An  edict  often  ends  with  the  formula,  "Let  this  be  proclaimed 
abroad  for  information."  After  the  formula,  or  after  the  conclusion 
of  the  edict  proper,  if  no  formula  he  used,  two  words  always  appear, 
which  are  commonly  translated  as  "Respect  this,"  in  which  sense 
they  might  be  regarded  as  part  of  the  imperial  pronouncement. 
Another  rendering  is,  "Reverently  received,"  the  formula  being 
understood  as  added  in  the  office  which  receives  the  edict  from  the 
Emperor  for  promulgation.  However  rendered,  the  effect  is  in  the 
.sense  of,  "This  is  the  imperial  will." 

In  conclusion,  it  may  be  fitting  to  mention  one  organ  of  the 
Chinese  government  which  has  a  peculiar  and  suggestive  function, 
namely,  the  Censorate.  The  censors,  to  the  number  of  half  a  hundred 
or  more,  are  scattered  about  in  the  provinces  and  at  the  capital.  In 
common  with  other  high  officials  it  is  their  prerogative  to  memorialize 
the  throne  on  any  subject  of  importance  to  the  state,  but  it  is  their 
peculiar  duty  to  watch  against  abuses  in  government,  against  mal- 
feasance of  any  sort,  and  to  impeach  high  officials,  or  even  the  throne 
itself,  for  transgression  or  derehction.  The  official  tenure  of  cen.sors, 
to  be  sure,  like  that  of  other  officials,  rests  in  the  pleasure  of  the 
sovereign.  Nevertheless,  censors  often  show  boldness  and  indepen- 
dence, even  to  the  point  of  heroism,  in  their  impeachments.  Projects 
of  needed  legislation,  also,  often  come  up  first  as  memorials  from 
censors.  The  functions  of  the  censors  thus  suggest,  in  a  dim  way, 
some  important  functions  of  the  American  House  of  Representatives. 
Like  that  body  they  are  supposed  to  serve  in  a  peculiar  relation  as 


APPENDIX    F  399 


guardians  of  the  interests  of  the  people  and  of  the  traditions  of  the 
state.  A  brilliant  Chinese  official,  educated  in  Europe,  has  said  to 
me,  "The  censors  are  to  China  what  the  House  of  Commons  is  to 
England."  At  least  we  may  regard  the  Censorate  as  one  of  those 
excellent  institutions  of  the  Chinese  state  which  give  promise  that 
many  of  its  ancient  forms  may  yet  be  vitalized  into  beneficent  facts. 


INDEX 


INDEX 


(Names  of  speakers  in  small  capitals.) 


Abbott,  B.  F.,  285. 

Abbott,  Nathan,  304. 

Acheson,  Marcus  W.,  277. 

Adams,  Elbridge  L.,  297. 

Adams,  Elmer  B.,  282,  323. 

Adams,  Samuel,  306. 

Administrators  and  Executors,  For- 
eign (see  Executors). 

Ailshie,  James  F.,  283. 

Aiken,  E.  C,  297. 

Alabama  State  Bar  Association,  List  of 
Delegates  from,  29c. 

Alaskan  Boundary  Commission,  The, 

33- 
"^Alfani,  Alberto,  276. 

Allen,   Charles  Claflin,  xiii,  280,  315, 

323.327- 

AUen,  E.  T.,  308. 

Alvey,  Richard  H.,  277. 

Ambler,  B.  Mason,  308,  321. 

American  Bar  Association,  references 
to,  I,  6,  107,  172,  176,  235,  236,  256- 
2'6o,  263,  264;  various  proposed 
resolutions  sent  to,  to  be  transmitted 
to  a  subsequent  Congress,  266-267; 
list  of  ex-presidents  of,  279;  Hst  of 
Delegates  from,  arranged  by  States 
and  Territories,  285;  reports  of 
Committee  on  Louisiana  Purchase 
Exposition,  318,  et  seq.;  appropria- 
tion by,  for  the  purposes  of  the 
Congress,  329. 

Ames,  C.  B.,  299. 

Ames,  James  Barr,  307. 

Amphictyonic  Council  of  the  Greek 
States,  10. 

Amsterdam,  Delegate  from  the  Fac- 
ulty of  Law  of  the  University  of,  276. 

Anderson,  William  A.,  302. 


Andrews,  A.  B.,  Jr.,  298. 
Andrews,  James  DeWitt,  280. 
Andrews,  Lorrin,  279. 
Angert,  E.  H.,  330. 
Appel,  W.  N.,  308. 
Appendix,  313. 

Arbitration  (see  International  Arbitra- 
tion) . 
Archambault,  H.,  271. 
Arellano,  Cayetano,  279,  300. 
Argentine    Republic,    Delegate    from, 

270. 
Arizona,   Bar  Association  of,   List  of 

Delegates  from,  290. 
Arkansas,  Bar  Association  of.  List  of 

Delegates  from,  290. 
Arkansas,  University  of,  Delegate  from 

the  Law  Department  of,  304. 
Armistead,  H.  M.,  290. 
Arnold,  C.  W.  H.,  297. 
Arnstein,  Albert,  309,  323. 
Articles  of  Association  (see  Joint  Stock 

Companies) . 
Asp,  Henry  E.,  288. 
Association  of  American  Law  Schools, 

List  of  Delegates  from,  304. 
Austria,  List  of  Delegates  from,    270. 
Auten,  Voris,  299. 
Avery,  Lincoln,  295. 
Aylesworth,  Allen  Bristol,  271. 

Babb,  James  E.,  303;  communication 
from,  concerning  international  ex- 
change of  law  publications,  233; 
resolution   based   thereon   adopted, 

234- 
Babbitt,  Kurnel  R.,  285. 
Baer,  George  F.,  300. 
Baker,  Benjamin  S.,  296. 


403 


404 


INDEX 


Baker,  Charles  S.,  292. 

Baker,  H.  A.,  331. 

Baker,  Rhodes  S.,  301. 

Bakewell,  Paul,  287,  330. 

Baldmii,  Clark  E.,  295. 

Baldwin,  Simeon  E.,  xvi,  2  79, 320, 327 ; 
elected  a  Vice-President,  8;  moves 
the  election  of  Moorfield  Storey  as  a 
member  of  the  Committee  of  Na- 
tions, 114;  remarks  of,  upon  the  four 
Hague  Conferences  for  the  advance- 
ment of  private  international  lav?, 
172;  presides  in  the  absence  of  Pres. 
Brewer,  184;  remarks  of,  as  Acting 
President,  185,  207,  227,  229,  231, 

233.  235- 
Ball,  Dan  H.,  295. 

Bane,  Charles  H.,  290. 

Bankruptcy,  The  Hague  draft  treaty 
upon,  discussed,  129,  157;  text  of 
the  treaty,  363;  the  recognition  to  be 
accorded  judicial  action  by  courts  of 
a  foreign  nation  in  re  bankruptcy 
matters,  204. 

Bannon,  J.  W.,  298. 

Banquet,  63. 

Bar  Association  of  St.  Louis  (see  St. 
l^uis) . 

Barclay,  Shepard,  309,  323. 

Barnard,  Joe,  284. 

Barnes,  Charles  A.,  309. 

Barnes,  William  H.,  290. 

Barrett,  William  E.,  302. 

Bartch,  George  W.,  283. 

Bartlett,  Edmund  M.,  287. 

Barton,  R.  M.,  Jr.,  301. 

Bate,  J.  Pawley,  274. 

Battle,  B.  B.,  283. 

Baxter,  Ed.,  301,  320,  321. 

Baxter,  Irving  F.,  287. 

Bayless,  S.  O.,  298. 

Beale,  Joseph  H.,  Jr.,  304,  305. 

Bean,  R.  S.,  283,  320. 

Beard,  W.  D.,    283,  301. 

Beaty,  A.  L.,  301. 

Beck,  George  F.,  330. 

Becker,  Tracy  C,  297. 


Belgian  systejn  of  procedure  in  trial  of 
civil  actions,  95. 

Belgium,  List  of  Delegates  from,  270. 

Belser,  W.  G.,  300. 

Benedict,  Robert  D.,  288. 

Benedict,  Wm.  S.,  294. 

Bennett,  R.  B.,  271. 

Bergen,  James  J.,  287,  296. 

Berndcs,  R.,  273. 

Bibliography  of  The  Hague  Confer- 
ences on  Private  International  Law, 

375- 

Bicksler,  W.  S.,  309. 

Biggar,  Oliver  M.,  271. 

Biggs,  J.  Crawford,  298. 

Bingham,  Edward  F.,  284. 

Bispham,  George  Tucker,  280. 

Bissell,  Julius  B.,  291. 

Black,  Alfred  L.,  302. 

Black,  Charles,  C,  296. 

Black,  J.  C.  C,  291. 

Blair,  Henry  P.,  291. 

Blair,  James  L.,  323. 

Blake,  S.  R.,  301. 

Blanchard,  L.  C,  293. 

Blodgett,  Henry  W.,  331. 

Blondel,  Georges,  273;  elected  a 
member  of  the  Committee  of  Na- 
tions, 61;  speaker  at  banquet,  63. 

Blount,  William  A.,  285. 

Board  of  Lady  Managers  of  the 
Louisiana  Purchase  Exposition,  Re- 
ception by  the,  to  the  Delegates  and 
ladies,  268. 

Boddaert,  Henri,  270. 

Bonaparte,  Charles,  J.,  280. 

Bonnefield,  M.  S.,  304. 

Bonner,  J.  W.,  301. 

Booth,  Henry  J.,  298. 

Borah,  W.  E.,  303. 

Bordeaux,  Delegate  from  the  Univer- 
sity of,  273. 

Boston  University  Law  School,  Dele- 
gate from,  307. 

Boudeman,  Dallas,  295. 

Boyd,  James  E.,  298. 

Boyle,  Wilbur  P.,  280,  323. 


INDEX 


405 


Bradford,  J.  C,  301. 

Bradwell,  James  B.,  291. 

Brainerd,  Cephas,  297. 

Branham,  Joel,  291. 

Brannon,  W.  W.,  309. 

Braxton,  A.  C,  289. 

Brazil,  Vice-President  from,  elected, 
185;  Delegate  from,  271. 

Breaux,  Joseph  A.,  283;  remarks  of, 
229. 

Breckenredge,  Ralph  W.,  296. 

Breckons,  Robert  W.,  291. 

Breen,  William  P.,  280. 

Brennan,  Michael,  295. 

Brewer,  David  J.,  xv,  xvii,  277,  327; 
President  of  the  Congress,  000,  000; 
inaugural  remarks  of,  4;  remarks  of, 
as  presiding  officer,  8,  45,  52,  60,  61; 
speaker  at  the  banquet,  63;  remarks 
of,  as  presiding  officer,  90,  95,  99, 
100,  102,  114,  116,  134,  172;  re- 
marks of,  on  The  Hague  Confer- 
ences, 177;  as  presiding  officer,  181; 
temporarily  resigns  the  chair,  184; 
resumes  the  chair,  268;  remarks  of, 
closing  the  Congress,  268. 

Brewster,  James  H.,  307. 

Bridgers,  John  L.,  288. 

Brifaut,  Valentin,  61,  270. 

Brill,  Hascal  R.,  295. 

Briscoe,  John  P.,  283. 

British  Columbia,  Delegates  from  the 
Law  Society  of,  271. 

Bromberg,  Frederick  G.,  290. 

Brown,  Frederick  V.,  309. 

Bro^vn,  George  H.,  298. 

Brown,  H.  B.,  277. 

Brown,  J.  Hay,  299. 

Brown,  James  F.,  309. 

Brown,  Rome  G.,  287. 

Brown,  T.  J.,  283. 

Brown,  W.  Jethro,  275. 

Browne,  A.  B.,  280,  320. 

Bruce,  Andrew  A.,  288. 

Bruuialti,  A.,  273,  275. 

Brussels,  Order  of  Advocates  of,  Dele- 
gates from,  27c. 


Bryan,  W.  Christy,  330. 

Buckler,  WilUam  Hepburn,  274. 

Bunn,  Henry  G.,  283. 

Burford,  John  H.,  284. 

Burgess,  William  H.,  301. 

Burkett,  Harlan  F.,  298. 

Burleigh,  Clarence,  300. 

Burns,  A.  D.,  296. 

Burroughs,  J.  B.,  298. 

Burwell,  B.  F.,  284. 

BusBEE,  Fabius  H.,  309,  320;  offers  a 
resolution  in  regard  to  illness  of 
George  F.  Hoar,  64;  moves  suspen- 
sion of  rules,  232. 

Butler,  Charles  Henry,  280;  illness  of, 
necessitates  a  substitute  as  a  pri- 
mary speaker,  238. 

Butler,  Hugh,  309,  318,  320. 

Button,  Frederick  H.,  309,  321. 

Byers,  Lawrence  M.,  306. 

Cabinet,  The  lawyers  of.  Delegates  to 

the  Congress,  278. 
Cadwalader,  John,  288. 
California  State  Bar  Association,  List 

of  Delegates  from,  290. 
Cambridge  University,  Delegates  from 

the  Law  Faculty  of,  274. 
Campbell,  Given,  323. 
Canada,  List  of  Delegates  from,  271. 
Carey,  Charles  H.,  288. 
Carey,  Martin,  297. 
CarHsle,  John  G.,  280. 
Carmichael,  J.  H.,  304. 
Carney,  J.  L.,  293. 
Carr,  George  H.,  309. 
Carr,  Lewis  E.,  297. 
Carson,  Hampton  L.,  288. 
Carter,  H.  C,  301. 
Carter,  James  C,  279. 
Cary,  Alfred  L.,  302. 
Castle,  William  R.,  291. 
Catania,    Italy,    Delegates    from    the 

Order  of  Advocates  of,  275. 
Catlin,  Daniel  K.,  331. 
Catron,  Thomas  B.,  288,  320. 
Caulfield,  Henry  S.,  323. 


4o6 


INDEX 


Ceylon,  List  of  Delegates  from,  272; 
Delegate  from  the  Law  Society  of, 
272. 
Chaplin,  Hugh  R.,  294. 
Chaplin,  T.  F.,  331. 
Chase,  Arthur  H.,  296. 
Cheney,  A.  E.,  304. 
Chicago,  University  of.  Delegates  from 

the  Law  School  of  the,  305. 
China,  List  of  Delegates  from,  272. 
Chinese  Legislative  Procedure,  Notes 

on,  a  paper  by  C.  M.  L.  Sites,  395. 
Chinese  methorl  of  procedure  in  trial  of 

civil    actions,     remarks     upon,    by 

Chow  Tszchi,  115. 
Choate,  Joseph  H.,  280. 
Chow  Tszchi,  xv,  272;  elected  a  Vice- 
President,  8;  speaker  at  the  banquet, 

63;  remarks  of,  on  methods  of  civil 

procedure  in  China,  115. 
Christie,  Harvey,  L.,  323. 
Christy,  George  D.,  290. 
Church,  Melville,  285. 
Ciancico,  Francesco,  275. 
Civil  actions  (see  Trial  of). 
Civil  Law  Methods  of  Trial  (see  Trial 

0}  Civil  Actions) . 
Civil  Procedure,  Treaty  upon   (1896), 

discussed,     121,     139;    text    of    the 

Treaty,  Appendix,  332. 
Clabaugh,  Henry  M.,  277. 
Clark,  Washington,  300. 
Clarke,  John  F.,  297. 
Clayton,  Henry  D.,  278. 
Clearwater,  Alphonso  T.,  297. 
Cleaveland,  H.  G.,  330. 
Clement,  L.  H.,  298. 
ClilTord,  Charles  W.,  287. 
Cochran,  Alexander  G.,  287,  323. 
Cocke,  William  H.,  330. 
Cockrell,  Francis  M.,  278. 
Code   Napoleon   (see    Trial  0}   Civil 

Actions). 
Cohn,  M.  M.,  309. 
Colahan,  John  B.,  Jr.,  299. 
Cole,  C.  C,  293,  306;  remarks  of,  108, 

III. 


Cole,  Clarence  L.,  296. 

Colegio  de  Abogados  de  Filipinas, 
Delegates  from,  300. 

Colgrove,  Phillip  T.,  295. 

Colie,  E.  M.,  296. 

CoUer,  Julius,  295. 

Collins,  Charles  Cummings,  330. 

Colorado  Bar  Association,  List  of 
Delegates  from,  291. 

Colorado,  University  of,  Delegate  from 
the  School  of  Law  of  the,  305 . 

Colt,  Lc  Baron  B.,  277. 

Columbia  University,  Delegates  from 
the  School  of  Law  of,  307. 

Columbian  University  (The  George 
Washington  University),  Delegates 
from  the  Dept.  of  Law  of,  305. 

Committee  of  Nations,  The,  election 
of,  60;  first  meeting  of,  61 ;  report  of, 
102;  notice  of  meeting,  114;  vacancy 
filled,  114;  report  of,  178;  member 
from  Brazil  added,  185;  report  of, 
233;  report  on  proposed  interna- 
tional bar  association,  255;  report 
on  various  resolutions,  264-267. 

Committees:  On  Plan  and  Scope,  xiii, 
327;  Exposition  Committee,  323; 
American  Bar  Association  Com- 
mittee on  Louisiana  Purchase  Ex- 
position, 319;  Committee  on  Pro- 
gramme and  Rules,  327;  on  Ways 
and  Means,  330;  on  Entertainment, 
330;  Escort  Committee,  330. 

Common  Law  method  of  trial  (see 
Trial  of  Civil  Actions). 

Comparison  of  methods  of  procedure 
in  trial  of  civil  actions  (see  Trial  of 
Civil  Actions). 

Conant,  Ernest  B.,  306. 

Congress  of  American  Republics 
(City  of  Mexico,  1902),  15. 

Congress  of  the  United  States,  List  of 
the  Government  Delegates  taken 
from,  278. 

Conjugal  relations,  The  Hague  draft 
treaty  upon,  discussed,  128;  text  of 
the  draft  treaty,  354. 


INDEX 


407 


Conkling,  Virgil,  324. 
Conrad,  Holmes,  280. 
Conventions  and  Convention  Projects, 

Text  of  the  Various  Hague,  332. 
Cook,  W.  W.,  307. 
Cooper,  Lawrence,  290. 
Cornell   University,   College  of   Law, 

Delegate  from,  308. 
Cornish,  Leslie  C,  294. 
Coste,  Paul  F.,  309,  323. 
Cotter,  John  W.,  320,  321. 
Coudert,  Frederick  R.,  Jr.,  280. 
Cozier,  R.  V.,  303. 
Crain,  John  H.,  293. 
Crane,  Frederick  E.,  297. 
Crawford,  Coc  I.,  289. 
Crawford,  W.  L.,  301. 
Crosby,  J.  O.,  293;  remarks  of,  262. 
Cummins,  A.  B.,  286. 
Cunningham,  Edward,  Jr.,  309,  330. 
Cunningham,  George  A.,  292. 
Cunningham,  Henry  C,  291. 
Cunningham,  S.  M.,  299. 
Curran,  WiUiam  R.,  292. 
Curtis,  William  S.,  307. 
Cuthbert,  L.  M.,  291. 
Czar  of  Russia,   Rescript  of  (1898), 

15,  18. 

Dabney,  Lewis  S.,  303. 

Dale,  H.  F.,  306. 

Dalzell,  John,  278. 

Daniel,  John  W.,  278. 

Daniels,  Edward,  293. 

Danish    System    of    Civil    Trial    (see 

Trial  oj  Civil  Actions). 
D'.\rcy,  Edward,  331. 
Davidson,  Samuel  P.,  296. 
Davis,  E.  P.,  271. 
Davis,  Frank  D.  N.,  295. 
Davis,  Henry  E.,  285. 
Davis,  James  C,  320,  321. 
Davis,  J.  Lionberger,  330. 
Davis,  Manton,  330. 
Davis,  Theodore  P.,  292. 
Day,  William  R.,  277. 
De  Andreis,  Victor,  275. 


De  Armond,  David  A.,  278. 

De  Azpiroz,  Manuel,  xvi,  276; 
elected  a  Vice-President,  8;  speaker 
at  the  banquet,  63;  resolution 
offered  by,  231;  argument  in  sup- 
port of  resolution,  384;  resolution 
reported,  266;  referred  to  American 
Bar  Association,  267. 

De  Daninos,  Arnoldo,  276. 

Deemer,  H.  E.,  283. 

de  Graffenried,  Edward,  290. 

De  La  Garza,  Emeterio,  276;  elected 
member  of  the  Committee  of  Na- 
tions, 61. 

Delegates-at-Large  (U.  S.),  List  of, 
308. 

Delegates,  List  of,  270. 

DE  LoBEL,  LoiCQ,  273;  resolution 
offered  by,  266;  argument  of,  391. 

del  Rosario,  Tomd,s  G.,  300. 

Dennis,  William  CuUen,  304. 

Denver,  University  of,  Delegates  from 
the  School  of  Law  of,  305. 

De  Sadeleer,  Louis,  270. 

Dessau,  Washington,  291. 

Deutsch,  Henry,  295. 

Dewey,  Henry  S.,  287. 

De  Wiart,  L.  Carton,  272. 

Dickinson,  Don  M.,  280,  321. 

Dickinson,  J.  M.,  33,  280;  elected  a 
member  of  the  Committee  of  Na- 
tions, 61;  departure  of,  from  the 
Congress,  causes  a  vacancy  in  the 
Committee,  114. 

Dickinson,  M.  F.,  280. 

Dickson,  Samuel,  280. 

Dietrich,  F.  S.,  303. 

Dillard,  F.  C,  309,  318,  321. 

Dillon,  John  F.,  279;  remarks  of, 
103;  defence  of  the  jury  system, 
107. 

Diplomatic  agents,  in  re  Police  Regu- 
lations, q.  V. 

Director  of  Congresses  of  the  Univer- 
sal Exposition,  xiii. 

District  of  Columbia,  Bar  Association 
of  the.  List  of  Delegates  from,  291. 


4o8 


INDEX 


Diven,  George  M.,  297. 

Divorce,  The  Hague  treaty  upon,  dis- 
cussed, 125,  151;  text  of  the  treaty, 
342;  foreign  divorce  decrees,  the 
recognition  to  be  accorded,  discussed, 
198,  207,  220,  379. 

Dean,  Fletcher  M.,  284. 

Doertenbach,  Paul,  273;  elected  a 
member  of  the  Committee  of  Na- 
tions, 61. 

Dole,  Sanford  B.,  279. 

Donalson,  J.  E.,  291. 

Doolan,  J.  C,  294. 

Douglas,  Albert,  298. 

Douglas,  Edward  W.,  297. 

Douglas,  Robert  M.,  283;  remarks 
of,  230. 

Doyle,  John  H.,  298. 

Drake  University  (Iowa  College  of 
Law),  Delegates  from,  306. 

Drouin,  F.  X.,  271. 

Dryden,  John  N.,  296;  remarks  of, 
263. 

Dudley,  C.  A.,  306. 

Dunbar,  James  R.,  303. 

Dundy,  Charles  L.,  309. 

Durand,  Lorenzo  T.,  295. 

Du  Relle,  George,  309. 

Du  Val,  Ben  T.,  320. 

Dyer,  H.  Chouteau,  330. 

Earnest,  John  P.,  305. 

Eastman,  Samuel  C,  309,  320. 

Eaton,  Amasa  M.,  280. 

Eckstein,  Otto  G.,  293,  324. 

Eddy,  Arthur  J.,  292. 

Edinburg,  Delegate  from  the  Univer- 
sity of,  274. 

Edings,  W.  S.,  284. 

Edson,  Joseph  R.,  309;  resolutions 
offered  by,  184;  resolution  of,  on 
harmonization  of  patent  laws, 
adopted,  233;  resolution  on  estab- 
lishment of  a  bureau  of  criminology, 
referred  to  American  Bar  Associa- 
tion, 266,  267. 

Edward  VII.,  King,  44. 


Egypt,  List  of  Delegates  from,  272. 

Egypt,  Methods  of  Trial  in,  109. 

Eicher,  H.  M.,  293. 

Elder,  Samuel  J.,  303. 

Eliot,  Edward  C,  287. 

EUinwood,  Everett  E.,  285. 

Elliott,  Charles  B.,  295. 

ElHs,  A.  C,  309. 

Ellis,  Wade  H.,  298. 

Ellison,  Thomas  E.,  293. 

Emery,  Lucilius  A.,  283. 

England,  Delegates  from  the  General 
Council  of  the  Bar  of,  274. 

English  Common  Law  Method  of 
Trial  (see  Trial  of  Civil  Actions). 

Estabrook,  Henry  D.,  288. 

Evans,  E.  B.,  306. 

Evans,  H.  K.,  293. 

Evans,  Montgomery,  299. 

Evans,  Walter,  282. 

Ewing,  John  G.,  309. 

Ewing,  Nathaniel,  299. 

Ex-Attorneys  General  of  the  United 
States,  Living  (1904),  278. 

Ex-Presidents  of  the  American  Bar 
Association,  Living  (1904),  279. 

Exposition,  St.  Louis  (see  Louisiana 
Purchase  Exposition  Company). 

Executors  and  Administrators,  Status 
of  foreign,  discussed,  202. 

Extradition  of  fugitives  from  justice, 
resolution  touching  treaties  upon, 
offered  by  Sr.  de  Azpiroz,  231 ;  argu- 
ment in  support  thereof,  384;  re- 
ported by  Committee  of  Nations, 
266;  referred  to  American  Bar  Asso- 
ciation, 267. 

Fahlcrantz,  G.  E.,  xvi,  276;  elected 
a  Vice-President,  8;  elected  a  mem- 
ber of  the  Committee  of  Nations, 
61;  paper  by,  64-90;  supplementary 
remarks  of,  100. 

Fairbanks,  Charles  W.,  278. 

Farrington,  E.  S.,  304. 

Faulkner,  Charles  J.,  302. 

Faurest,  L.  A.,  294. 


INDEX 


409 


Federal  Judges  (U.  S.)  who  accepted 
invitations  to  become  members  of 
the  Congress,  282. 

Fell,  D.  Newlin,  283. 

Fernandez,  Josfi  V.,  xv,  270;  elected 
a  Vice-President,  8;  member  of  the 
Committee  of  Nations,  60;  motion 
offered  by,  62;  argument  in  support 
of  motion,  182;  report  on  motion, 
by  Committee  of  Nations,  182. 

Ferrara,  Order  of  Advocates  of,  Dele- 
gate from,  275. 

Ferraris,  Carlo  Francesco,  275;  elected 
a  member  of  the  Committee  of  Na- 
tions, 61. 

Ferriss,  Franklin,  309,  323. 

Field,  Frank  Harvey,  297. 

Fiero,  J.  Newton,  297. 

FiNKELNBURG,  G.  A.,  280,  323;  motion 
offered  by,  in  re  laws  of  maritime 
warfare,  62 ;  report  on  motion  of,  by 
Committee  of  Nations,  180;  paper 
by,  237-245;  resolution  of,  recom- 
mended to  be  presented  to  the  next 
Hague  Conference,  265. 

Finlay,  Sir  R.  B.,  274. 

Fish,  Daniel,  295. 

Fish,  Frederick  P.,  287. 

Fisher,  D.  D.,  295. 

FitzGerald,  Justice,  271. 

Fleischmann,  Simon,  298. 

Fleming,  John  D.,  305. 

Fletcher,  John,  285. 

Florance,  Ernest  T.,  309. 

Florida,  Delegate  from,  appointed  by 
the  Supreme  Court,  303. 

Follansbee,  George  A.,  286. 

Follett,  A.  D.,  309. 

FoLLETT,  Martin  D.,  309;  motion 
offered  by,  237;  remarks  of,  255, 
261. 

Fordyce,  S.  W.,  Jr.,  330. 

Foreign  Decrees  of  Divorce,  Remarks 
of  Sig.  Pavia  on,  207  (English 
Translation),  379. 

Foreign  Delegates,  List  of,  270. 


Foreign  Possessions  of  the  I'nited 
States,  Government  Delegates  from, 
279. 

Forney,  J.  H.,  303. 

Forster,  George  M.,  309,  321. 

Fortunate,  Ernesto,  275. 

Foster,  John  W.,    280;     paper   by, 

9-45- 

Fowler,  David,  283. 

Fox,  Austen,  G.,  288. 

Fox,  Edward  J.,  299. 

Fox,  James  D.,  283. 

Fox,  John  Scott,  274. 

France,  List  of  Delegates  from,  272. 

Francis,  D.  R.,  President  of  the  Ex- 
position, xiii;  address  of  welcome  by, 
2;  approves  memorial,  317. 

Francotte,  Gustave,  Secretary  of 
State  of  Belgium,  speaker  at  the 
banquet,  63. 

Franklin,  Thomas  H.,  301. 

Frazer,  Robert  S.,  300. 

Freeman,  Henry  V.,  292. 

Freeman,  W.  P.,  292. 

Freeman,  Winfield,  293,  324. 

French  system  of  civil  procedure  (see 
Trial  of  Civil  Actions). 

Frost,  Edward  W.,  309. 

Fuller,  Melville  W.,  277. 

Fur  Seal  Arbitration  at  Paris,  (1893) 
31- 

Gaglio,  Cologero,  275. 
Galbraith,  C.  A.,  284. 
Gallencamp,  C.  F.,  324. 
Gait,  Smith  P.,  309. 
Gans,  Edgar  H.,  294. 
Gantt,  James  B.,  283. 
Garesche,  V.  W.,  330. 
Gameau,  Leon,  271. 
Garnett,  Theodore  S.,  280,  302. 
Gast,  Charles  E.,  291. 
General  Council  of  the  Bar  of  Eng- 
land, Delegates  from  the,  274. 
Geneva  Arbitration,  The,  12,  27,  31, 

53- 


4IO 


INDEX 


George  Washington  University,  The 
(see  Columbian  University). 

Georgia  Bar  Association,  List  of  Dele- 
gates from,  2gi. 

Georgia,  University  of,  Delegates  from, 

305- 
German  civil  procedure  (see  Trial  oj 

Civil  Actions). 

Ghent,  Order  of  Advocates  of.  Dele- 
gate from,  270. 

Gere,  George  W.,  292. 

Germany,  List  of  Delegates  from,  273. 

Gibbs,  Hunter  A.,  300. 

Gibson,  N.  A.,  292. 

Gilbert,  Barry,  306. 

Gilbert,  William  B.,  277. 

Gill,  Joseph  A.,  284. 

Gillette,  F.  E.,  284. 

Gilmore,  E.  A.,  308. 

Giordana,  P.,  276. 

Glasgow,  William  A.,  Jr.,  289. 

Glenn,  James  Morrison,  271. 

Geotchius,  H.  R.,  291. 

Goff,  Nathan,  277. 

Gongalves,  Lopes,  xv,  271;  elected  a 
Vice-President  and  member  of  the 
Committee  of  Nations,  185. 

Goodrich,  Ben,  290. 

Gose,  John  T.,  305. 

Government    Delegates    from    the 
United  States,  List  of,  277-281. 

Grace,  H.  H.,  302. 

Graham,  Samuel  C,  302. 

Grant,  Alexander,  274. 

Grant,  Claudius  B.,  283. 

Graves,  Carroll  B.,  302. 

Gray,  George,  309,  320. 

Great  Britain  and  Ireland,  I-ist  of 
Delegates  from,  274. 

Greeley,  Louis  May,  306. 

Green,  J.  W.,  293,  324. 

Gregory,  Charles  Noble,  306. 

Gregory,  Stephen  S.,  286. 

Grey,  Norman,  296. 

Griffin,  Samuel,  302. 

Griggs,  John  W.,  278,  321. 

Gross,  William  L.,  292. 


Grosscup,  Peter  S.,  282. 

Grossman,  E.  M.,  330. 

Grover,  J.  H.,  331. 

Grubb,  Ignatius  C,  283. 

Guardianship  of  Minors,  The  Hague 
Treaty  upon,  discussed,  126,  154; 
text  of  the  treaty,  345;  status  of, 
foreign  judgments  affecting,  dis- 
cussed, 203,  225. 

Guthrie,  George  W.,  288. 

Guthrie,  William  D.,  280. 

Hadley,  Hiram  E.,  283. 

Hager,  John  F.,  294. 

Hagerman,  Frank,  287. 

Hagerman,  James,  xiii,  280;  speaker 

at  the  banquet,  63;  remarks  of,  256; 

Am.    Bar   Association    Committee, 

317.  319.  323.  325.  327- 

Hagerman,  Lee  W.,  330. 

Hague  Conferences  on  Private  Inter- 
national Law,  The  (see  International 
Law,  Private). 

Hague  Conventions  and  Convention 
Projects,  Text  of  the,  332. 

Hague  Peace  Conference,  The,  11-60; 
the  American  Delegates,  17;  dis- 
tinction between  different  confer- 
ences at  The  Hague,  135;  resolution 
welcoming  a  new  peace  conference, 
179. 

Hague  Tribunal,  The,  9-60. 

Haight,  Albert,  283. 

Hainer,  Bayard  T.,  284,  320. 

Haiti,  Delegate  from,  275. 

Hall,  Claud  D.,  331. 

Hale,  John  C,  299. 

Hall,  James  Parker,  305. 

Hall,  Walker  C,  294. 

Hamill,  Charles  H.,  292. 

Hamilton,  Alexander,  289. 

Hamlin,  Hannibal  E.,  286,  320,  321. 

Hammond,  Edwin  P.,  292. 

Hammond,  Eli  Shelby,  282. 

Hammond,  W.  M.,  291. 

Hancock,  W.  Scott,  331. 

Haney,  Dick,  283. 


INDEX 


411 


Hanford,  Cornelius  H.,  282. 

Hanford,  Solomon,  297. 

Hardin,  John  R.,  296. 

Hargest,  Wm.  M.,  299. 

Haring,  Cornt-lius  I.,  303. 

Harkcr,  Oliver  A.,  292,  306. 

Harlan,  James  S.,  309. 

Harlan,  John  M.,  277. 

Harlan,  John  Maynard,  292. 

Harmon,  Judson,  278,  320. 

Harnish,  M.  M.,  309. 

Harriman,  Edward  A.,  307. 

Harriman,  Edward  Avery,  285. 

Harris,  Addison,  C,  293. 

Harris,  S.  H.,  299. 

Harris,  W.  O.,  286. 

Harrison,  George  P.,  290. 

Hart,  W.  O.,  309. 

Hartmann,  Adolf,  xv,  273;  elected  a 
Vice-President,  8;  speaker  at  the 
banquet,  63;  remarks  of,  91,  no. 

Hartshorne,  Charles  H.,  296. 

Harvard  Law  School,  Delegates  from, 

307- 
Harvey,  Thomas  B.,  310,  323. 
Harwood,  Thomas  E.,  310. 
Hastings,  WiUiam  G.,  296. 
Haughton,  R.  B.,  310,  323. 
Hawaii,    Bar  Association  of.   List  of 

Delegates  from,  291. 
Hawkins,  John  J.,  290. 
Hawkins,  W.  A.,  296. 
Hay,  John,  278. 
Hayes,  Samuel,  306. 
Hayes,  William  S.,  274. 
Heame,  David,  272. 
Heiskell,  F.  H.,  301. 
Helm,  Lynn,  310. 
Hemenway,  Alfred,  280,  320. 
Henderson,  David  B.,  286. 
Henderson,  D.  S.,  300. 
Heney,  Francis,  J.,  280. 
Henning,  D.  C,  299. 
Hensel,  W.  U.,  288,  320. 
Hepburn,  Charles  M.,  288,  306. 
Herbert,  C.  L.,  292. 
Hereford,  F.  H.,  290. 


Herndon,  J.  C,  310,  319. 

Hessberg,  Albert,  298. 

Higgins,  Frank  M.,  310. 

High  Seas,  Protection  to  private  prop- 
erty on  the,  in  time  of  war  (see 
Private  Property). 

Hill,  B.  H.,  291. 

Hill,  David  B.,  297. 

Hill,  James  E.,  301. 

Hill,  Joseph  M.,  290. 

Hill,  Walter  B.,  305. 

Hills,  W.  J.,  310,  319. 

Hinkley,  John,  280. 

Hinton,  Edward  W.,  307. 

History  of  the  Organization  of  the 
Congress,  315. 

Hoar,  George  F.,  278;  resolution  in 
regard  to  illness  of,  presented,  64; 
resolutions  on  the  death  of,  pre- 
sented, 332;  referred  to  Committee 
of  Nations,  233;  reported  favorably, 
264;  adopted,  265. 

Hoar,  Rockwood,  303. 

Hobgood,  F.  P.,  Jr.,  298. 

Hodges,  William  V.,  291,  305. 

Hoffman,  William,  293. 

Hogate,  Enoch  G.,  306. 

Hogg,  J.  S.,  302. 

Hogsett,  T.  H.,  299. 

Holdom,  Jesse,  291. 

Holland,  R.  A.,  Jr.,  331. 

HolUday,  John  H.,  330. 

Holmes,  J.  T.,  298. 

Holmes,  Oliver  Wendell,  277. 

Holt,  William  H.,  284. 

Hook,  WilUam  C,  282. 

Hopkins,  E.  H.,  299. 

Homblower,  William  B.,  280. 

Homer,  H.  R.,  300. 

Hough,  Warwick,  295,  330. 

House,  J.  W.,  290. 

Howe,  William  Wirt,  279,  294,  320. 

Howry,  Charles  B.,  282. 

Hoyt,  Henry  M.,  278. 

Hoyt,  James  H.,  280. 

Hoyt,  Lucius  W.,  285,  305. 

Hubbell,  Charles  Bulkly,  297. 


412 


INDEX 


Huberich,  Charles  H.,  308. 

Hudson,  J.  H.,  300. 

HuFFAKER,  F.  M.,  304;  remarks  of, 

262. 
Huffcut,  Ernest  W.,  297,  304,  308. 
Hughes,  Allen,  290. 
Hundley,  Oscar  R.,  285. 
Hungary,  Delegate  from,  275. 
Hunsaker,  William  J.,  290. 
Hunt,  WilUam  H.,  279. 
Hunter,  Gordon,  271. 
Hunter,  William  R.,  292.' 
Hurley,  M.  A.,  302. 
Husband    and    wife,    the    rights    and 

duties  of,  The  Hague  draft  treaty 

upon,    discussed,    128;    text   of   the 

draft  treaty,  354. 
Hutchins,  Edward,  W.,  303. 

Idaho,  Delegates  from,  appointed  by 

the  Supreme  Court,  303. 
Illinois    College   of   Law    (Dearborn 

University),  Delegates  from,  305. 
Illinois  State  Bar  Association,  List  of 

Delegates  from,  291,  292. 
Illinois,  University  of.  Delegates  from, 

306. 
Incorporated     Law     Society    of     the 

United  Kingdom,  Delegate  from  the, 

274. 
Indian  Territory  Bar  Association,  List 

of  Delegates  from,  292. 
Indiana  Bar  Association,  List  of  Dele- 
gates from,  292,  293. 
Indiana    University,    Delegates    from 

the  Law  School  of,  306. 
Ingalsbe,  Grcnville  M.,  297. 
Ingersoll,  Henry  H.,  289. 
Interchange  of  law  publications,Reso- 

lution  favoring,  234. 
International    Arbitration,    discussed, 

by  J.  W.  Foster  and  others,  9-60; 

Washington  Conference  on,  26,  28, 

39,    42;    proposed    resolution    on, 

180;    disposition  of  resolution,  179. 

(See    also    Hague    Peace    Conjer- 

ences.) 


International  Bar  Association:  Organ- 
ization of  one  proposed,  113;  report 
on,  by  Committee  of  Nations,  234; 
resolution  offered  by  Committee  of 
Nations,  235;  remarks  of  Sir  W.  R. 
Kennedy,  236;  vote  on  resolution 
deferred,  237;  debate  upon,  255-264; 
Committee's  resolution  adopted, 
264. 

International  Civil  Procedure,  The 
Hague  Treaty  upon,  discussed,  139; 
text  of  the  treaty,  332. 

International  Controversies,  The  pro- 
motion of  the  settlement  of,  whether 
by  resort  to  The  Hague  Tribunal  or 
reference  to  special  commissions: 
paper  by  John  W.  Foster,  9;  dis- 
cussion by  Emilio  Velasco,  45;  J.  H. 
Ralston,  52. 

International  Law,  Private,  A  review 
of  the  Four  Hague  Conferences  on, 
The  object  of  the  Conferences  and 
probable  results:  paper  by  D.  J. 
Jitta,  117;  paper  by  F.  Meili,  135; 
remarks  of  Judge  Baldwin,  172; 
President  Brewer,  177;  text  of  The 
Hague  Treaties  on,  332;  bibliog- 
raphy, 375. 

International  Law  Association,  Refer- 
ences to,  142,  143,  162,  185,  187, 
194,  196,  236,  256-263;  Delegate 
from,  274. 

International  Private  Law,  The  Hague 
Treaty  upon,  discussed,  144;  text  of 
the  treaty,  338. 

Internationale  Vereinigung  fiir  Ver- 
gleichende  Rechtswissenschaft  und 
Volkswirthschaftslehre  zu  Berlin, 
Delegates  from,  273. 

Interparliamentary  Union,  Resolution 
touching  the  work  of  the,  in  behalf 
of  Peace,  178.  (See  also  Peace 
Congress.) 

Iowa  College  of  Law  (Drake  Univer- 
sity), Delegates  from,  306. 

Iowa  State  Bar  Association,  List  of 
Delegates  from,  293. 


INDEX 


413 


Iowa,  State  University  of,  Delegates 
from  the  College  of  Law  of,  306. 

Ireland,  Delegate  from  the  Incorpor- 
ated Law  Society  of,  274.  (See 
also  Great  Britain  and  Ireland.) 

Irving,  Acmilius,  271. 

Italy,  Attitude  of,  iu  re  foreign  decrees 
of  divorce,  207;  list  of  Delegates 
from,  275. 

Jackson,  A.  A.,  302. 

Jackson,  Clifford,  L.,  310,  320. 

Jacobs,  Thomas  P.,  302. 

James,  Edmund,  273. 

James,  Francis  B.,  288. 

Januar)',  William  L.,  287. 

Jenkins,  James  G.,  277. 

Jenkins,  John  J.,  278. 

Jenkins,  Theodore  F.,  300. 

Jennings,  Andrew  J.,  303. 

Jennings,  Robert,  W.,  285. 

Jewett,  Charles  L.,  293. 

JiTTA,  D.  J.,  xvi,  276;  elected  a  Vice- 
President,  8;  elected  a  member  of 
the  Committee  of  Nations,  61; 
paper  by,  117-134- 

Johnson,  Frank  Asbury,  291. 

Johnson,  John  D.,  310,  323. 

Johnson,  John  G.,  280. 

Johnston,  W.  A.,  283. 

Joint  stock  companies,  desirabiHty  of 
an  international  form  of  articles 
of  association  for.  Resolution  touch- 
ing the,  266;  argument  by  L.  de 
Lobel,  391;  referred  to  Am.  Bar 
Association,  267. 

Joline,  Adrian  H.,  288. 

Jones,  A.  A.,  296. 

Jones,  Burr  W.,  289. 

Jones,  James  C,  330. 

Jones,  W.  Martin,  297. 

Jonson,  Jep  C,  294. 

Jordan,  David  Starr,  304. 

Jordan,  John  H.,  299. 

Judd,  J.  W.,  301. 

Judges,  Federal  (U.  S.).  Delegates  to 
the  Congress,  282. 


Judges,  State  Supreme,  Delegates  to 
the  Congress,  283. 

Judgments,  Foreign,  in  personam,  191, 
215,  228;  in  rem,  197,  219;  affecting 
status,  198;  touching  marriage  and 
divorce,  198,  207,  220;  recognition 
of  foreign  administrators  and  execu- 
tors, 202;  foreign  guardians  and 
curators,  203,  225;  bankruptcy,  204; 
the  Italian  attitude  toward  foreign 
decrees  of  divorce,  207;  excess  of 
jurisdiction,  216;  want  of  notice  to 
defendant,  216;  fraud,  217.  (See 
Judicial  Action,  etc.) 

Judicial  action  by  courts  of  a  foreign 
nation.  Extent  of  recognition  to  be 
accorded:  paper  by  Sir  W.  R.  Ken- 
nedy, 186;  discussed  by  A.  Pavia, 
207;  W.  Nesbitt,  213;  E.  Q.  Keas- 
bey,  227;  Jos.  A.  Breau.x,  229; 
R.  M.  Douglas,  230.  (See  Jiidg- 
mettts,  Foreign.) 

Judiciary,  Delegates  from  the  Ameri- 
can, 282. 

JuDSON,  Frederick  N.,  287,  323; 
remarks  of,  103,  104. 

Jury  (see  Trial  by  Jury). 

Kales   Albert  Martin,  306. 

Kammerer,  A.  E.,  331. 

Kane,  M.  J.,  299. 

Kansas,  Bar  Association  of  the  State 

of.    List   of   Delegates    from,    293; 

committees  of,  324. 
Keasbey,  Edward  Q.,  281;  remarks 

of,  227. 
Keeling,  J.  H.,  274. 
Keller,  Benj.  F.,  282. 
Kelley,  John  S.,  294. 
Kellogg,  F.  H.,  292. 
Kellogg,  Frank  B.,  280. 
Kellogg,  Ralph,  297. 
Kelly,  Joseph  L.,  302. 
Kemp,  Wyndham,  301,  310. 
Kennedy,  Sir  William  R.,  xv,  274; 

elected  a  Vice-President,  8;  speaker 

at  the  banquet,  63;  paper  by,  186- 


414 


INDEX 


207;  remarks  of,  236;  presides  in 
absence  of  Prcs.  Brewer,  184;  re- 
marks of,  as  Acting  President,  237, 
245,  247,  251,  253,  255,  264,  265, 
268. 

Kent,  Edward,  279. 

Kent,  Henry  T.,  310,  323,  330. 

Kentucky  State  Bar  Association,  List 
of  Delegates  from,  294. 

Kern,  R.  H.,  310,  323. 

Kernan,  Thomas  J.,  286. 

Ketcham,  William  A.,  310,  317,  320. 

Keysor,  William  W.,  307. 

Kibler,  Edward,  299. 

King,  Edmund  B.,  299. 

Kirchwey,  George  W.,  304,  307. 

Kittredge,  Alfred  B.,  278. 

Klein,  Jacob,  xiii,  281,  323,  327,  329 

Knowlcs,  Hiram,  282. 

Knox,  P.  C,  278. 

Koon,  M.  B.,  295. 

Kruttschnitt,  Ernest  B.,  281,  294. 

Labastida,  I^uis  G.,  Jr.,  276. 

Ladd.  Sanford  B.,  295. 

Ladd,  Scott  M.,  293. 

La  Fontaine,  Henri,  270. 

Lamm,  Henry,  295. 

Larnaudc,  F.,  xv,  272;  elected  a  Vice- 
President,  8. 

Lathrop,  Gardiner,  310,  324. 

Law  Publications  and  Statutes,  Reso- 
lution favoring  the  international 
exchange  of,  234. 

Lawrence,  W.  R.,  284. 

Law  Schools,  American,  List  of  those 
sending  Delegates,  304. 

Law  Societies  (see  geographical 
names). 

Lawson,  John  D.,  310. 

Lawson,  Thomas  G.,  291. 

Laylin,  L.  C.,  298. 

Lee,  John  F.,  310,  323. 

Leger,  J.  N.,  275. 

Lehmann,  F.  W.,  xiii,  281,  323, 
327;  remarks  of.  in  opening  the 
Congress,  i;  speaker  at  the  bantiuel, 


63;  moves  the  election  of  a   \'ice 
President  from  Brazil,  185. 

Lehmann,  Sears,  330. 

Leland  Stanford  Junior  University, 
Delegates  from,  304. 

Letton,  (j.  B.,  296. 

Levi,  T.  Arthur,  275. 

Lewis,  William  Draper,  308. 

Lewis,  Joseph  W.,  330. 

Libby,  Charles  F.,  281,  318,  321. 

Library  of  Congress,  Exchange  bureau 
of,  234. 

Liddon,  Benjamin  S.,  310,  320. 

Lindsley,  Smith  M.,  297. 

Lionbcrger,  Isaac  H.,  281,  323,  330. 

List  of  Delegates  accredited  tf)  the 
Congress,  270. 

Little,  Gilbert  F.,  284. 

Littlefield,  Charles  E.,  278. 

Logan,  Walter  S.,  281,  317,  320; 
resolution  offered  by,  thanking  the 
P^xposition  Company  and  various 
bar  associations  for  their  hospitahty 
to  the  Delegates,  184;  remarks  of, 
258;  resolution  of,  adopted,  267. 

Lorente,  P.  Tomas,  308. 

Lougheed,  J.  A.,  271. 

Louisiana  Bar  Association,  List  of 
Delegates  from,  294. 

Louisiana  Purchase,  i,  108. 

Louisiana  Purchase  Exposition  Co., 
Memorial  from,  to  the  American 
Bar  Association,  inviting  participa- 
tion in  organization  of  the  Congress, 
315;  meeting  place  of  Congress,  i; 
greeting  from,  2;  banquet  given  by, 
63;  vote  of  thanks  to,  267;  references 
to,  256  318-326;  appropriation 
made  by,  for  the  ])urposes  of  the 
Congress,  329. 

Louvain  University,  Delegate  from, 
270. 

Ludwig,  John  C,  302. 

Lunacy,  The  Hague  draft  treaty  upon, 
discussed,  128,  154;  text  of  the 
treaty,  358. 

Lurton,  Horace  H.,  277. 


INDEX 


415 


McAlister,  W.  K.,  283. 

McAlvay,  Aaron  V.,  295. 

McBride,  Henry,  310. 

McCain,  W.  S.,  310. 

McClain,  Emlin,  283,  321. 

McClellan,  Thomas  N.,  319. 

McClench,  William  W.,  303. 

McClung,  William  H.,  300. 

McComas,  L.  E.,  310,  320. 

McCormick,  Marshall,  302. 

McCreary,  Alvin  J.,  281. 

McDermott,  E.  J.,  294. 

McDonald,  J.  E.,  300. 

Macdonnell,  Sir  John,  274. 

McDonough,  John  T.,  300. 

McFie,  John  R.,  284. 

McHenry,  W.  H.,  306. 

Mack,  Julian  William,  305. 

McKeehan,  Joseph  P.,  299. 

McKeighan,  J.  E.,  310,  323. 

McKenna,  Joseph,  277. 

McKenney,  Frederic  D.,  291. 

Mackey,  Paul  F.,  299. 

McLean,  Donald,  298,  310. 

Macmaster,  D.,  271. 

McNulty,  George  F.,  292. 

McPherson,  Smith,  282. 

McQuown,  Lewis,  294. 

MacVeagh,  Wayne,  278. 

Madden,  Joseph,  296. 

Magruder,  Benjamin,  D.,  283. 

Maine  State  Bar  Association,  List  of 
Delegates  from,  294. 

Maine,  The  University  of.  Delegates 
from  the  School  of  Law  of,  307. 

Maiorana,  Gaetano,  275. 

Malone,  J.  H.,  301. 

Manchester  (see  Victoria  Univer- 
sity.) 

Manderson,  Charges  F.,  280,  320; 
speaker  at  the  banquet,  63. 

Manila,  University  of  Sto.  Tomas  of, 
Delegate  from,  308. 

Manly,  Clement,  298. 

Mansen,  Edward  W.  D.,  274. 

Mapa,  Victoriano,  300. 

Marbury,  Wm.  L,.,  294. 


Marriage,  The  Hague  Convention 
upon,  discussed,  122,  145,  147; 
text  of  the  treaty  upon,  338;  foreign 
judgments  touching  marriage,  dis- 
cussed, 198,  220. 

Marshall,  Louis,  297. 

Martin,  J.  Norman,  299. 

Martin,  T.  B.,  290. 

Maryland  State  Bar  Association,  List 
of  Delegates  from,  294. 

Marvin,  U.  L.,  298. 

Mason,  Henry  F.,  283. 

Massachusetts,  Delegates  from,  ap- 
pointed by  the  Supreme  Court,  303- 

304- 

Matheny,  James  H.,  292. 

Mattingly,  William  F.,  291. 

Maury,  William  A.,  305. 

Maxwell,  Lawrence,  Jr.,  288. 

Mayhew,  A.  E.,  310,  321. 

Meili,  F.,  xvi,  276;  elected  a  Vice- 
President,  8;  elected  a  member  of 
the  Committee  of  Nations,  61; 
paper  by,  135;  appendix  containing 
the  text  of  the  various  Hague  con- 
ventions   and    convention    projects, 

332- 
Meldrim,  P.  W.,  281. 
Members,  List  of,  270. 
Mercur,  Rodney  A.,  281. 
Mestrezat,  Leslie  S.,  283. 
Metcalf,  C.  W.,  301. 
Mexican    Mixed    Claim    Commission 

(1869),  54,  56. 
Mexico,     List     of     Delegates     from, 

276. 
Michigan  State  Bar  Association.  List 

of  Delegates  from,  295. 
Michigan,    University    of.    Delegates 

from  the  Dept.  of  Law  of,  307. 
Mikell,  William  E.,  308. 
Milburn,  John  G.,  297. 
Miller,  John  S.,  292. 
Miller,  T.  S.,  289. 
Miller,  W.  H.  H.,  278. 
MilKken,  J.  D.,  293. 
Mills,  W.  J.,  284,  296. 


4i6 


INDEX 


Minnesota  State  Bar  Association,  List 
of  Delegates  from,  295. 

Minor,  Raleigh  C,  310,  321. 

Missouri  Bar  Association,  List  of 
Delegates  from,  295-296;  vote  of 
thanks  to,  267. 

Missouri,  University  of.  Delegates 
from  the  Law  Dept.  of,  307. 

Mollohan,  Wesley,  302. 

Monroe,  Charles,  310,  320. 

Montgomery,  M.  A.,  310,  320. 

Monti-Guarnieri,  Stanislao,  275. 

Montpcllier,  Delegate  from  the  Uni- 
versity of,  273. 

Montreal,  Delegates  from  the  Junior 
Bar  Association  of,  271. 

Moody,  Wm.  H.,  278. 

Moore,  C.  F.,  302. 

Moore,  J.  M.,  310. 

Moore,  J.  W.,  301. 

Moore,  John  Bassett,  281. 

Moore,  Joseph  B.,  283. 

Moores,  Merrill,  286. 

Moot,  Adalbert,  297. 

Mordecai,  T.  Moultrie,  310,  320. 

Morgan,  John  T.,  278. 

Morling,  Edgar  A.,  293. 

Morrill,  John  A.,  294. 

Morris,  John,  286. 

Morris,  Martin  F.,  284. 

Morris,  Sylvanus,  305. 

Morris,  Thomas  J.,  282. 

Morrow,  William  W.,  282. 

Morton,  J.  R.,  294. 

Moses,  Adolph,  292,  318,  320. 

Mosman,  C.  A.,  295. 

Moulton,  Henry  P.,  303. 

Munger,  Wm.  H.,  282. 

Nagel,  Charles,  281. 

Naples,  Order  of  Advocates  of,  Dele- 
gates from,  275. 

Nash,  L.  J.,  302. 

Nebraska  State  Bar  Association,  List 
of  Delegates  from,  296. 

Nebraska,  University  of.  Delegate 
from  the  College  of  Law  of,  307. 


Nerincx,  Alfred,  xv,  270;  elected  a 
Vice-President,  8;  remarks  of,  95. 

Nesbitt,  Wallace,  272;  elected  mem- 
ber of  Committee  of  Nations,  61 ;  as 
chairman  of  Committee,  reports, 
102,  178;  speech  on  the  recognition 
of  foreign  judgments,  214;  presents 
report  of  Committee  of  Nations, 
233.  255.  264-267. 

Netherlands,  Delegate  from,  276. 

Nevada,  Delegates  from,  aj)pointed  by 
the  Supreme  Court,  304. 

New  Hampshire,  Bar  Association  of 
the  State  of,  List  of  Delegates  from, 
296. 

New  Jersey  State  Bar  Association, 
List  of  Delegates  from,  296. 

Newman,  Jared  T.,  297. 

Newman,  William  T.,  282. 

New  Mexico  Bar  Association,  List  of 
Delegates  from,  296. 

New  York  State  Bar  Association, 
References  to,  29,  43;  list  of  Dele- 
gates from,  297-298. 

Nicholson,  John  R.,  283. 

Nichols,  H.  S.  Prentiss,  299. 

Nields,  Benjamin,  285. 

Niles,  Alfred  S.,  294. 

Niles,  Henry  C,  299;  resolutions 
offered  by,  on  death  of  George  F. 
Hoar,  232. 

Niles,  William  H.,  303. 

Noble,  John  W.,  281,  323. 

North  Carolina  Bar  Association,  List 
of  Delegates  from,  298. 

Northwest  Territories,  Delegates  from 
the  Law  Societies  of  the,  271. 

Northwestern  University,  Delegates 
from  the  Law  School  of,  306. 

Norton,  J.  K.  M.,  302. 

Norwegian  System  of  Civil  Trials 
(see  Trial  of  Civil  Actions). 

Notes  on  Chinese  Legislative  Proce- 
dure: a  paper  by  C.  M.  L.  Sites,  395. 

Nott,  Charles  C,  277. 

Nova  Scotia  (see  Canada). 

Noyes,  George  H.,  303. 


INDEX 


417 


Obeyesekere,  D.,  272. 

O'Brien,  Denis,  283. 

O'Brien,  Thomas  J.,  287. 

O'Donnell,  Thomas  J.,  285. 

Officers  of  the  Congress,  00. 

Ogden,  Howard  N.,  305. 

Oglesby,  Ira  D.,  310. 

Ohio  State   Bar  Association,  List  of 

Delegates  from,  298. 
Oklahoma   Bar   Association,    List   of 

Delegates  from,  299. 
Oldham,  Willis  D.,  296. 
Ohn,  John  M.,  303. 
Olney,  Richard,  278. 
Orendorf,  Alfred,  292. 
Organization   of    the    Congress,   xiii; 

history  of,  315. 
Orlady,  George  B.,  299. 
Orrick,  Allen  C,  330. 
Ostrander,  Russell  C,  295. 
Overall,  John  H.,  323. 
Oxford  University,  Delegates  from  the 

Law  Faculty  of,  274. 

Padua  University,  Delegate  from  the 
Faculty  of  Law  of,  275. 

Page,  George  T.,  292. 

Page,  Howard  W.,  299. 

Palmer,  Henry  W.,  278. 

Palmer,  Truman  F.,  286. 

Pancoast,  J.  L.,  284. 

Papers  read:  J.  W.  Foster,  9;  G.  E. 
Fahlcrantz,  64;  D.  J.  Jitta,  117; 
F.  MeiH,  135;  Sir  W.  R.  Kennedy, 
186;  G.  A.  Finkelnburg,  237. 

Pardee,  Don  A.,  277. 

Park,  O.  A.,  291. 

Parker,  Cortlandt,  279. 

Parker,  R.Wayne   287,  296,320,  321. 

Parker,  Samuel,  293. 

Patent  laws.  Resolution  favoring  the 
harmonization  of,  in  different  coun- 
tries, 233. 

Patterson,  Lindsay,  298. 

Patterson,  Thomas,  281. 

Patteson,  S.  S.  P.,  289. 

Pattison,  E.  W.,  310. 


Pavia,  Angelo,  xvi,  276;  elected  a 
Vice-President,  8;  speaker  at  the 
banquet,  63;  remarks  of,  on  foreign 
decrees  of  divorce,  207;  resolution 
offered  by,  213;  English  translation 
of  remarks  by,  279. 

Peace  Conference  (see  Hagtte  Peace 
Conference) . 

Peace  Congress,  The  (1904),  45,  178. 
(See  Interparliamentary  Union.) 

Pearce,  James  A.,  283. 

Peck,  George  R.,  281. 

Peckham,  Rufus  W.,  277. 

Peckham,  Wheeler  H.,  281. 

Peele,  Stanton  C,  305. 

Pennsylvania  Bar  Association,  List  of 
Delegates  from,  299,  300. 

Pennsylvania,  University  of,  Delegates 
from  the  Dept.  of  Law  of,  308. 

Pennypacker,  Samuel  W.,  299. 

Pereles,  James  M.,  303. 

Perkins,  Robert  J.,  294. 

Permanent  Court  of  Arbitration  (see 
Hague  Tribunal). 

Permanent  organization  (see  Inter- 
7iational  Bar  Association). 

Perry,  Charles  W.,  295. 

Peter,  Arthur,  305. 

Pettus,  William  G.,  331. 

Phihppine  Bar  Association,  List  of 
Delegates  from,  300. 

PhiHps,  John  F.,  282,  324. 

PhiUimore,  George  G.,  274. 

Pickens,  Samuel  O.,  293. 

Pickle,  G.  W.,  301. 

Pieris,  R.  E.,  272. 

Piguit,  M.,  273. 

Pilcher,  J.  S.,  301. 

Pious  Fund  Case,  The,  32-60. 

Pittman,  Key,  304. 

Pleadings,  under  various  systems  of 
law  (see  Trial  0}  Civil  Actions). 

Police  Regulations,  Infraction  of,  by 
diplomatic  agents,  resolution  touch- 
ing presented  and  referred  to  Com- 
mittee of  Nations,  232;  reported 
unfavorably,  266. 


4i8 


INDEX 


Pollock,  John  C,  2S2. 

Pope,  William  H.,  279 

Porter,  V.  M.,  iii,  vii,  xiii,  xvi,  60-64, 
184,  267,  310,  327,  329;  chosen 
Secretary  of  the  Congress,  xvii; 
articles  by,  as  Editor  of  the  Report, 
V,  63,  315. 

Potter,  Charles  N.,  283,  321. 

Potter,  William  P.,  283. 

Pound,  Roscoe,  296. 

Powers,  Llewellyn,  294. 

Prankerd,  Archibald  A.,  274. 

Priest,  H.  S.,  295. 

Prince  Edward  Island,  Delegate  from 
the  Law  Society  of  the  Province  of, 
271. 

Private  Property  on  the  High  Seas  in 
Time  of  War,  The  Protection  which 
should  be  accorded  to;  paper  by 
G.  A.  Finkclnburg,  237;  discussed 
by  A.  von  Stibral,  245;  E.  P. 
Wheeler,  247;  Moorfield  Storey, 
251;  G.  S.  Robertson,  253. 

Proceedings  of  the  Congress,  first  day, 
i;  second  day,  morning  session,  64; 
afternoon  session,  114;  third  day, 
morning  session,  185;  afternoon 
session,  237. 

Provosty,  Oliver,  O.,  283. 

Pruden,  W.  D.,  298. 

Quebec,  Civil  Trials  in  the  Province 

of.    III. 

Quebec,  Delegates  from  the  General 
Council  of  the  Bar  of  the  Province 
of,  271. 

Quinones,  Jose  Severo,  279. 

Ralls,  Joseph  G.,  286. 

Ralston,  J.  H.,  291;  remarks  of,  52. 

Ralston,  Robert,  299. 

Rassieur,  Leo,  310,  323,  330. 

Rawle,  Francis,  280;  nomination  of 
Vice-Presidents  by,  8;  announce- 
ment by,  63;  resolution  offered  by, 
232;  resolution  of,  referred  to  Ameri- 
can Bar  Association,  266-267. ' 


Rawlins,  W.  Donaldson,  274. 

Rawlinson,  J.  F.  P.,  274. 

Raymond,  Charles  W.,  284. 

Read,  J.  F.,  290. 

Read,  W.  H.  A.,  298. 

Real  y  Pontificia  Universidad  de  Sto. 
Tomds  de  Manila,  The,  Delegate 
from,  308. 

Redwine,  R.  B.,  29S. 

Reed,  James  H.,  281. 

Renkin,  Jules,  270. 

Rescript  of  the  Emperor  of  Russia 
(1898),  15,  18. 

Resolutions  adopted:  welcoming  an- 
nouncement of  Pres.  Roosevelt  that 
he  will  call  a  new  peace  conference, 
179;  on  desired  harmony  of  patent 
laws  in  different  countries,  233;  on 
international  exchange  of  law  pub- 
lications, 234;  requesting  Am.  Bar 
Association  to  organize  an  inter- 
national bar  association,  264;  on  the 
death  of  Geo.  F.  Hoar,  265;  recom- 
mending the  consideration  by  the 
next  Hague  Conference  of  a  pro- 
posed change  in  the  laws  of  mari- 
time warfare,  265;  other  resolutions 
referred  to  Am.  Bar  .\ssociation  to 
be  transmitted  to  a  subsequent 
congress,  266,  267;  vote  of  thanks, 
267. 

ReyVmrn,  Vallc,  311,  323. 

Reynolds,  George  \'.,  331. 

Reynolds,  Ross,  300. 

Rice,  Charles  E.,  299. 

Rice,  J.  Kearny,  296. 

Rice,  W.  G.,  300. 

Richards,  H.  S.,  304,  308. 

Richards,  John  K.,  2S1. 

Riddell,  William  Renwick,  271. 

Riggs,  James  M.,  292. 

Right  of  Search  of  neutral  vessels, 
Resolution  touching,  presented,  232; 
reported  by  Committee  of  Nations 
and  referred  to  Am.  Bar  As.socia- 
tion,  266,  267. 

Robb,  Bamford,  A.,  320,  321. 


INDEX 


419 


Robert,  Edward  S.,  xiii,  281,  323,  327. 

Roberts,  Vasco  H.,  307. 

Robertson,  George,  296. 

Robertson,  George  S.,  274;  remarks 
of,  253. 

Rodenbeck,  Adolph  J.,  297. 

Rogers,  Henry  T.,  291. 

Rogers,  Howard  J.,  Director  of  Con- 
gresses, xiii. 

Rogers,  James  T.,  297. 

Rogers,  John  H.,  282. 

Rogers,  Piatt,  281. 

Rogers,  William  P.,  304. 

Rolapp,  H.  H.,  311. 

Rollitt,  Sir  Albert  K.,  274. 

Roman  methods  of  trial  of  civil  actions 
compared  with  modern  methods 
(see  Trial  of  Civil  Actions). 

Rome,  Order  of  Advocates  of.  Dele- 
gates from,  275. 

Ronan,  E.  D.,  297. 

Roosevelt,  President,  references  to, 
V,  32-34,  44.  5I'  62,  63,  179,  244. 

Root,  Elihu,  281. 

Rose,  George  B.,  281. 

Rose,  James  H.,  293. 

Rose,  U.  M.,  280,  321. 

Rosendale,  Simon  W.,  297. 

Roulhac,  Thomas  R.,  290. 

Rouse,  John  D.,  294. 

Rowe,  L.  S.,  273. 

Rowell,  Clinton,  311,  323. 

Roy,  R.  F.,  296. 

Rudd,  William  Piatt,  288. 

Ruhl,  C.  H.,  300. 

Rules  of  Organization  and  Procedure, 
xvii. 

Runnells,  John  S.,  286. 

Russell,  Alfred,  320,  321. 

Russell,  Henry  M.,  302. 

Russell,  J.  J.,  296. 

Rutledge,  Benjamin  H.,  311. 

Rutledge,  Thomas  G.,  330. 

St.  John,  C  J.,  301. 
St.  Louis,  Bar  Association  of,  its  part 
in  the  organization  of  the  Congress, 


V,  322,  326,  327,  328;  membership 
of  Committees,  323;  appropriation 
by,  for  purposes  of  the  Congress, 
328. 
St.  Louis,  Bar  of,  luncheons  given  by 
the,  to  the  Delegates,  113,  237; 
contribution  toward  the  expenses  of 
the  Congress,   328;  committees  of, 


329' 


;o. 


St.  Louis  Exposition  (see  Louisiana 
Purchase  Exposition  Company). 

St.  Louis  Law  School  (Law  Dept.  of 
Washington  University),  Delegates 
from,  307. 

Salazar,  Ygnacio  Perez,  276. 

Sanborn,  Walter,  H.,  277. 

Sanders,  Wilbur  F.,  287. 

Saner,  R.  E.  L.,  301. 

Sanford,  E.  T.,  301. 

Sawyer,  Alfred  P.,  303. 

Sayler,  Samuel  M.,  293. 

Scallon,  Wilham,  311,  321. 

Scarritt,  Ed.  L.,  311,  324. 

Schaller,  Albert,  295. 

Schnabel,  Charles  J.,  311. 

Schofield,  F.  L.,  311,  324. 

Schofield,  Henry,  306. 

Schofield,  William,  287. 

Schroers,  John,  317. 

Scialoia,  Vittorio,  275. 

Scott,  James  B.,  307. 

Scott,  Wilham,  300. 

Searcey,  W.  W.,  301. 

Searle,  Alonzo  T.,  299. 

Sears,  W.  G.,  301. 

Seddon,  James  A.,  311,  323. 

Sexton,  PHny  T.,  297. 

Shack,  Ferdinand,  281;  motion  offered 
by,  62;  motion  of,  reported  by  Com- 
mittee of  Nations,  178;  motion 
superseded  by  Committee's  motion, 
179. 

Shackleford,  Thomas  M.,  283. 

Sharp,  George  M.,  281. 

Sharp,  J.  F.,  292. 

Shaw,  L.  M.,  278. 

Sheldon,  Edward  W.,  297. 


420 


INDEX 


Shcpard,  Charles  E.,  289. 

Shepard,  Edward  M.,  297. 

Shepard,  Seth,  284. 

Shepard,  Theodore  F.,  295. 

Shepley,  Arthur  B.,  311,  323. 

Shepley,  John  F.,  330. 

Sherwood,  Adiel,  311,  324. 

Sherwood,  Thomas  A.,  295. 

Shields,  George  H.,  311. 

Shippen,  Joseph,  302. 

Short,  James,  271. 

Siddons,  F.  L.,  311. 

Simmons,  W.  E.,  291. 

Simms,  Dan  W.,  293. 

Simon,  J.  A.,  274. 

Simpson,  Alexander,  Jr.,  288. 

Sites,  C.  M.  Lacey,  272;  paper  by, 

395- 
Skinker,  Thomas  K.,  311,  330. 

Slocum,  Edward  T.,  303. 

Slocum,  Winiield  S.,  304. 

Slonecker,  J.  G.,  293,  324. 

Smith,  Alfred  Percival,  311. 

Smith,  Burton,  311,  318,  320. 

Smith,  Charles  Blood,  311,  320. 

Smith,  Edwin  Burritt,  286. 

Smith,  Eleneious,  311,  323. 

Smith,  Fred  Dumont,  293. 

Smith,  Griswold,  331. 

Smith,  Harvey  F.,  311. 

Smith,  Luther  Ely,  330. 

Smith,  Lyndon  A.,  295. 

Smith,  Monroe,  273. 

Smith,  Walter,  G.,  288. 

Smith,  William  R.,  284. 

Socicte  de   Legislation   Comparee  de 

Paris,  Delegate  from  the,  273. 
Solicitor  General,  The  (U.  S.),  278. 
Soper,  P.  L.,  284. 
South  Carolina  Bar  Association,  List 

of  Delegates  from,  300. 
South  Dakota   Bar  Association,   List 

of  Delegates  from,  300. 
Southard,  Louis  C,  307. 
Spear,  William  T.,  284,  298. 
Spalding,  Burleigh  F.,  311,  320. 
Speed,  Horace,  311. 


Speer,  Emory,  282. 

Spencer,  O.  M.,  295. 

Spencer,  Selden  P.,  287,  323,  324. 

Spilman,  E.  G.,  311. 

Spooner,  John  C,  278. 

Spoonts,  M.  A.,  301. 

Spurlock,  Frank,  301. 

Squire,  Andrew,  288. 

Staake,  William  H.,  299. 

Stanley,  William  L.,  291. 

State  Bar  Associations,  List  of,  with 
names  of  Delegates  from,  290. 

State  Supreme  Court  Judges  who 
accepted  invitations  to  become  mem- 
bers of  the  Congress,  283. 

Statutes  (see  Law  Publications). 

Stayton,  Joseph  M.,  290. 

Steele,  Robert  W.,  284. 

Sterling,  Thomas,  300. 

Stevens,  Hiram  F.,  317,  319,  320. 

Stevens,  John  S.,  292. 

Stewart,  John,  300. 

Stewart,  Russell  C,  300. 

Stiness,  John  H.,  284. 

Stocklager,  Charles  O.,  284. 

Stone,  Charles  W.,  300. 

Storey,  Moorfield,  279;  elected  a 
member  of  the  Committee  of  Na- 
tions, 114;  resolution  offered  by,  in 
reference  to  international  arbitra- 
tion, 180;  remarks  of,  251. 

Sto.  Tomas  de  Manila,  University  of, 
Delegate  from,  308. 

Strawn,  Lester  H.,  292. 

Street,  Robert  G.,  302,  311;  resolution 
oii'ered  by,  in  reference  to  the  forma- 
tion of  an  international  bar  associa- 
tion, 114;  report  on  resolution  of,  by 
Committee  of  Nations,  234. 

Streeter,  Frank  S.,  2S7. 

Succession,  The  Hague  treaty  upon, 
discussed,  128,  155;  text  of  the 
treaty,  349.     (See  also  Executors.) 

Sulzbacher,  Louis,  284. 

Summary  of  Delegates,  Numerical, 
312. 

Sumner,  Edward  A.,  297. 


INDEX 


421 


Sumulong,  Juan,  300. 

Sun  Sze  Yee,  272;  elected  member  of 

the  Committee  of  Nations,  61. 
Supreme  Court  of  the  United  States, 

Justices  of,  277. 
SuRVEYER,   E.  Fabre,   27 1 ;  remarks 

of.    III. 

Sutro,  Oscar,  300. 

SuTRO,  Theodore,  311;  remarks  of, 

no. 
Swaney,  W.  B.,  311,  321. 
Swarts,  S.  L.,  330. 
Sweden,  Delegates  from,  276. 
Swedish  civil  procedure  (see  Trial  oj 

Civil  Actions). 
Sweeney,  John  P.,  304. 
Sweet,  Willis,  279. 
Switzerland,  Delegate  from,  276. 
Symonds,  Joseph  W.,  294. 
Syracuse  University,  Delegate  from  the 

College  of  Law  of,  308. 

Taft,  Elihu  B.,  289. 

Taft,  Wm.  H.,  278. 

Tarrant,  W.  D.,  303. 

Taussig,  George  W.,  311,  323. 

Taussig,  J.  Clarence,  330. 

Taylor,  Hannis,  274. 

Taylor,  R.  S.,  311. 

Taylor,  Wilham  L.,  293. 

Teasdale,  W.  B.,  295. 

Tennessee,  Bar  Association  of,  lAst  of 
Delegates  from,  301. 

Territorial  Judges  (U.  S.)  who  ac- 
cepted invitations  to  become  mem- 
bers of  the  Congress,  284. 

Terr}-,  J.  W.,  289. 

Texas  Bar  Association,  List  of  Dele- 
gates from,  301,  302. 

Texas,  University  of.  Delegate  from 
the  Dept.  of  Law  of,  308. 

Thayer,  Amos  M.,  xiii,  282,  323,  327; 
nominates  the  members  of  the  Com- 
mittee of  Nations,  60;  paper  of, 
before  Am.  Bar  Association,  re- 
ferred to  by  Judge  Dillon,  108. 

The  Hague  (see  Hague). 


Thomas,  Charles  E.  L.,  330. 

Thomas,  W.  G.  M.,  301. 

Thomas,  William  H.,  290. 

Thompson,  Albert  C,  282. 

Thompson,  R.  H.,  287. 

Thompson,  Seymour  D.,   Tribute  to 
by  G.  E.  Fahlcrantz,  65. 

Thompson,  Will  H.,  302. 

Thornton,  D.  L.,  294. 

Thurman,  B.  G.,  296. 

Tichenor,  Charles  O.,  287. 

Tilhnghast,  James,  311,  320. 

Tompkins,  W.  M.,  330. 

Toulmin,  Harry  T.,  282. 

Towner,  H.  M.,  293. 

Trabue,  Edmund  F.,  311,  320. 

Tracy,  Benj.  F.,  281. 

Treaty  of  Washington  of  1871,  12,  27. 

Treaty  on  International  Civil  Proce- 
dure discussed,  139;  text  of  the 
Treaty,  Appendix,  332. 

Trezevant,  M.  B.,  301. 

Trial  by  jury,  in  civil  actions,  con- 
demned, A.  Nerincx,  96;  defended, 
John  F.  Dillon,  103. 

Trial  of  Civil  Actions  with  respect  to 
Pleading  and  Evidence,  The  pref- 
erable method  of  regulating:  paper 
by  G.  E.  Fahlcrantz,  65;  discussion 
by  A.  Hartmann,  90,  A.  Nerincx,  95, 
G.  E.  Fahlcrantz,  100,  John  F. 
Dillon,  103,  S.  P.  Tuck,  109, 
T.  Sutro,  no,  A.  Hartmann,  no, 
E.  F.  Surveyer,  in. 

Trieber,  Jacob,  282. 

Tripp,  Bartlett,  300,  320. 

Troy,  Alexander,  290. 

Tuck,  Philemon,  H.,  294. 

Tuck,  Somerville  P.,  272;  speaker 
at  the  banquet,  63;  remarks  by,  109. 

Tucker,  Henry  St.  G.,  281;  speaker 
at  the  banquet,  63. 

Tunstall,  Richard  B.,  302. 

Turner,  George,  281. 

Turner,  R.  W.,  293. 

Turner,  W.  J.,  311. 

Tuthill,  Henry  B.,  293. 


422 


INDEX 


United  Kingdom,  Delegate  from  the 
Incorporated  Law  Society  of  the, 
274  (see  also  Great  Britain  and 
Ireland) . 

United  States  Circuit  Court  of  Ap- 
peals, The  Presiding  Judges  of,  277. 

United  States  of  America,  List  of  Dele- 
gates from,  277. 

Universal  Exposition,  St.  Louis  (see 
Louisiana  Purchase  Exposition 
Company) . 

Universities,  Foreign  (see  particular 
countries);  American  (see  Law 
Schools) . 

Upper  Canada,  Delegates  from  the 
Law  Society  of,  271. 

Valerv',  Jules,  273. 

Valyi,  Gabriel,  275. 

Van  Bibber,  George  L.,  294. 

Van  Cisc,  Edwin,  285. 

Van  Cuylenberg,  Hector,  272. 

Van  Deman,  John  N.,  298. 

Vander  Velde,  Emile,  270. 

Vandervoort,  J.  W.,  302;  remarks 
of,  lie. 

Van  Dcvanter,  Willis,  282. 

Vann,  C.  S.,  298. 

Vann,  Irving  G.,  284. 

Van  Orsdel,  Josiah  A.,  289. 

Van  Winkle,  W.  W.,  289. 

Varian,  Charles  S.,  289. 

Velasco,  Emilio,  276;  remarks  of,  45; 
motion  offered  by,  51,  61,  62;  re- 
port on  motion  of,  by  Committee  of 
Nations,  179. 

Venable,  Richard  M.,  286. 

Venezuela  Boundary  Arbitration,  30, 
el  seq. 

Vertrees,  J.  J.,  301. 

Vesey,  William  J.,  293. 

Vice-Presidents,  xv;  election  of,  8,  185. 

Victoria  University  of  Manchester, 
Delegate  from  the  Law  Faculty  of 
the,  274. 

Vienna,  University  of,  Delegate  from 
the,  270. 


Virginia  State  Bar  Association,  List 
of  Delegates  from  the,  302. 

Voigt,  John  F.,  Jr.,  292. 

von  Briesen,  Arthur,  281. 

von  Philippovich,  Eugen,  270. 

VON  Stibral,  Adalbert,  xv,  270; 
elected  a  Vice-President,  8;  mem- 
ber of  the  Committee  of  Nations,  60; 
speaker  at  bantjuet,  63;  remarks  of, 

245- 
Voorhees,  J.  H.,  300. 

Vorys,  A.  S.,  298. 

Wadhams,  Frederick  E.,  281. 

Waggener,  Balie  P.,  286. 

Wahrmund,  Dr.,  273. 

Wakeley,  E.,  311. 

Wales,  Delegates  from  the  University 

of,  275. 
Walker,  Bradley,  311. 
Walker,  Robert  F.,  312,  323. 
Wallace,  William  J.,  277. 
Walz,  William  E.,  307. 
Wanty,  George  P.,  282. 
War,   Protection   to   private   property 

on  high  seas  in  time  of  (see  Private 

Property) . 
Warren,  Everett,  299. 
Warren,  Winslow,  304. 
Warriner,  H.  C,  301. 
Warvelle,  George  W.,  305. 
Washburn  College,  Delegate  from  the 

School  of  Law  of,  306. 
Washburn,  Jed  L.,  295. 
Washington    State    Bar    Association, 

List  of  Delegates  from,  302. 
Washington  University,  Delegates  from 

the  Law  Dept.  of,  307. 
Waterman,  Charles  W.,  285. 
Waters,  Louis  L.,  308. 
Watson,  David  T.,  281. 
Weakley,  Samuel  D.,  290. 
Weatherly,  James,  290. 
Weaver,  S.  M.,  293. 
Webb,  James  H.,  305. 
Webster,  John  L.,  296. 
Weitzel,  George  T.,  323,  330. 


INDEX 


423 


West,  Samuel  H.,  323,  330. 

West  Virginia  Bar  Association,  List 
of  Delegates  from,  302. 

Westover,  Myron,  331. 

Wetmore,  Edmund,  280. 

Wheeler,  Everett  P.,  281;  motion 
offered  by,  62;  report  on  motion  of, 
by  Committee  of  Nations,  102;  re- 
marks of,  247,  261. 

Wheeler,  S.  S.,  298. 

Whitaker,  Edward  G-,  297. 

White,  Edward  D.,  277. 

White,  Robert,  312. 

Whitfield,  Albert  H.,  2S4. 

Whitelock,  George,  286;  resolution 
offered  by,  232. 

Whitson,  Edward,  302. 

Whybark,  Moses,  324. 

Wickersham,  James,  279. 

Wigmore,  John  H.,  286. 

Wilcox,  Ansley,  288. 

Wilcox,  Elmer  A.,  306. 

Wilfley,  L.  R.,  279. 

Wilgus,  Horace  L.,  307. 

Wilkinson,  A.  E.,  301. 

Willard,  Charles,  30c. 

Williams,  E.  P.,  292. 

Williams,  Ferdinand,  294. 

Williams,  George  H.,  278. 

Williams,  James,  274. 

Williams,  John  Sharp,  278. 


Williams,  P.  L.,  312,  321. 
Williams,  Robert  W.,  303. 
WilUams,  Stevenson  A.,  286. 
Williams,  W.  M.,  295. 
Willis,  L.  C,  294. 
Williston,  Samuel,  307. 
Wilson,  Nathaniel,  285,  291. 
Winkler,  Frederick  C,  289,  321. 
Wisconsin,  State  Bar  Association  of, 

List  of  Delegates  from,  302-303. 
Wisconsin,    University   of,    Delegates 

from  the  College  of  Law  of,  308. 
Withington,  David  L.,  285,  321. 
Wolverton,  Charles  E.,  284. 
Wood,  Benson,  292. 
Wood,  Horatio  D.,  312,  ^2^. 
Woodard,  Fred  A.,  298. 
Woods,  Charles  A.,  284,  289. 
Woods,  WilHam  W.,  286. 
Woodson,  A.  M.,  295. 
Woolworth,  James  M.,  279. 
Worthington,  A.  S.,  281. 
Wright,  Luke,  279. 
Wrigley,  W.  C,  296. 

Yale    University,    Delegate   from    the 

Law  Dept.  of,  305. 
Yancey,  David  Walker,  289,  312,  320. 

Zahn,  Dr.,  273. 
Zeisler,  Sigmund,  292. 


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